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Per Curiam:
This case is affirmed, on authority of Shields v. Comm’rs of Shawnee County, 5 Kas. 589.
The doubt expressed by Mr. Justice Valentine, in the case of The State v. John C. Reisner, 20 Kas. 548, is disapproved. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin, brought by Henry Joice against E. E. Hardin, to recover the possession of a certain wagon. John G. McElroy owned the-wagon, but Hardin held tbe same as constable by virtue of an execution issued against the property of McElroy, and Joiceclaimed to be entitled to the possession thereof by virtue of a paramount lien, claimed to have been created prior to the-issue of said execution, by virtue of certain transactions had between himself and McElroy. The facts of. the case are substantially as follows: Joice and McElroy each owned a sewing-machine wagon. McElroy borrowed Joice’s wagon, and as a pledge and security for the safe return of the same, left with Joice his own wagon. McElroy never returned Joice’s wagon.. About this time the Remington Sewing Machine Company obtained a personal judgment against McElroy for $35;. and on this judgment said execution was afterward issued and placed in the hands of Hardin, constable for service, who-soon afterward levied the same upon McElroy’s wagon and took it from the possession of Joice. Joice afterward commenced this action of replevin, to recover said wagon from Hardin. Afterward, McElroy “turned over” to the Remington Sewing Machine Company, Joice’s wagon in payment- or part payment of a debt due from McElroy to the company. The case was afterward tried before the court and. jury, and all the foregoing facts were amply proved. Upon, the questions whether Joice objected to Hardin’s taking the wagon from him, whether he uttered any protest against the-the same, or whether he did not voluntarily permit Hardin to levy upon the wagon and take it from his possession, and whether he did not willingly let it go, we shall quote the evidence in full.
The following is all the evidence introduced upon this subject. Joice himself testified as follows:
At the time the defendant took the wagon in controversy, by virtue of the execution against McElroy, he (Joice) notified defendant Plardin that he held it as a pledge, and that plaintiff’s wagon had never been returned by said McElroy, nor paid for. When the defendant was about to levy on the wagon, P told him just how I held it — that it was pledged to me by McElroy.
Cross-Examination ok PIenry Joice.— Question: Did you not state to defendant E. F. Plardin, before the defendant levied upon the wagon in controversy, and in the presence of W. F. Pugh and William Quigley, that the wagon in controversy was the absolute property of J. G. McElroy, and that there was no claim upon or to it by any one, and that the title to said wagon was in said McElroy, and as clear as a whistle?
Answer: I did so state to Mr. Plardin.
Question: Did you not take defendant Plardin to where said wagon was, and point it out to him as the property of said McElroy ?
Answer: I did.
Question: Did not defendant Plardin, when he was about to make the levy on said wagon, tell you that if you had any claim to or about the wagon, to make said claim known then and there? and you then'and there took out of said wagon a monkey-wrench which you stated belonged to PI. S. Miller? and also that you claimed and took from said wagon then and there a contrivance, used to fasten and secure sewing machines in-the wagon when hauling them about?
Answer: Yes.
W. F. Pugh testified as follows:
On the day that defendant Hardin levied upon the wagon, Mr. Joice stated to E. F. Hardin, in the presence of Mr. Quigley and myself, that the wagon in controversy was the absolute property of J. G. McElroy; that no one had a claim against it, and that the title to said wagon was in J. G. McElroy, and clear as a whistle.
Hardin testified as follows:
Before and at the time I made said levy, Joice stated to me that the wagon in controversy was the absolute property of J. G. McElroy. Joice Game to me and told me this. He said the title to said wagon was in J. G. McElroy, and there was no claim against it, and that it was as clear as a whistle. Joice tooh me to the wagon and pointed it out to me as the property of J. G. McElroy. I then told him if there was anything about or to said wagon that did not belong to McElroy, but belonged to him, to take the same then and there and claim the same. This was at the time I made the levy. Joice took from said wagon a certain monkey-wrench which he stated belonged to H. T. Miller. He also took out of said wagon a contrivance used to fasten and secure sewing machines in the wagon when hauling them about. Joice never told me he had a special interest in said wagon, but told me he owned the wagon that McElroy took to Miami county. . . . Had not Joice made such statements to me, I would not have levied upon the wagon in controversy.
No other evidence was introduced upon this subject.
The jury found in favor of Joice, and against Hardin. The defendant Hardin then moved the court for a new trial, upon the grounds that the verdict was against the law and the evidence. The court overruled the motion, however, and rendered judgment in favor of the plaintiff, and against the defendant, in accordance with the verdict. The defendant now, as plaintiff in error, brings the ease to this court, and assigns for error the overruling of said motion for a new trial. We think the court below erred; for, while the evidence showed that Joice stated to Hardin at the time the levy was made, that McElroy left his wagon with Joice as a pledge and a security for the safe return of Joice’s wagon, yet Joice did not assert in Hardin’s presence any claim to or lien upon the wagon. He did not object to Hardin’s taking it from him; he uttered no protest. On the contrary, he voluntarily and willingly permitted Hardin to take it; indeed, he even encouraged Hardin to take it. Hardin was undoubtedly led to believe by Joice’s words and actions that Joice had no intention of asserting any claim to or lien upon the property, but that whatever claim or lien Joice might have had or might have supposed he had with reference to said property, he was willing to waive it, and did waive it. Hardin acted upon these words and actions of Joice; and we think Hardin acted rightly,.and therefore no cause of action accrued against him by reason of such acts. As to Hardin, Joice waived all interest which he might have had in said wagon.
With these views, it follows that there was no sufficient evidence to sustain the verdict of the jury, which found substantially that Joice at the time of the commencement of this suit had a special ownership or interest in said wagon, paramount to Hardin’s right of possession, and that Hardin detained the property wrongfully from Joice; but on the contrary, the verdict of the jury was against the evidence in these respects. It follows that the court below erred in overruling said motion for a new trial, and therefore the judgment of the court below will be reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The question in this case is, whether the real estate attached at the instance of the plaintiff in error is exempt from forced sale as the homestead of the defendant in error. The findings of fact are as follows:
The defendant, Samuel L. Cody, on the 1st day of December, 1877, was an actual resident of the county of Sumner, and was not the owner of any real estate in the state of Kansas or elsewhere, and on that date he purchased the real estate in controversy for a homestead for himself and family, and paid for the same, with the intention of moving thereon with his family, and this he so stated at the time of said purchase. The occupation of said land as a homestead was a part of the consideration of the sale thereof to him by Francis Hoage, who occupied an eighty-acre tract adjoining, and but for his promise to so occupy said land as aforesaid, the sale thereof could not have been consummated; that said land was vacant and unoccupied at the date of the purchase. The defendant, in pursuance of his intention to make the said land his homestead, commenced to dig a cellar and hauled three loads of stone for a foundation for the dwelling-house hereinafter mentioned, and unloaded said stone at such cellar on said premises, and on the 5th day of said month he started to Wichita for the purpose of purchasing the material out of which to erect a dwelling-house on the land; that he made said purchase and returned with the same on the 7th day of said month, and unloaded the lumber on the land adjoining the land where he had previously excavated said cellar and unloaded the stone for such foundation, and within 100 feet of the-line of said land; that the levy herein was made on said land on the 7th day of December, 1877, before the lumber was ever on the said land, but after the same was unloaded as above set forth — but the levy was made before the defendant commenced the erection of the dwelling-house proper thereon; that at the date of said levy there was no house or building thereon, and that said defendant never lived on said land until after the levy; that immediately thereafter the defendant commenced the erection of a dwelling-house on said land, (upon which he had previously excavated a cellar and prepared the foundation as aforesaid,) and that he finished the said dwelling on the 28th of December, 1877; that the same was erected upon said land, and the material used was that purchased at Wichita and unloaded as aforesaid; that said dwelling-house is 14x16 in size, and one story high; that on the 28th day of December, 1877, the day upon which the defendant finished the dwelling-house, he with his family 'moved into the same, and from that date until the present time has lived in said house and occupied the land with his family as their homestead, and now occupies the same as aforesaid with his family, and that during the said occupancy the defendant has broken about fifteen acres thereof; that said tract of land contains eighty acres and no more, and that the same constitutes the sole and only real estate owned by the defendant at any time since the first day of December, 1877, in the state of Kansas or elsewhere.
Upon these findings the court below held that the defendant purchased the eighty acres for a homestead for himself and family; that the improvements were made thereon and occupied by the defendant and family as a homestead within a reasonable time after the purchase; and that therefore a homestead inviolability attached to the premises. Thereupon the attached property was discharged from the alleged lien created by the levy.
Under the circumstances of the case, it seems to us the court did not err in holding it exempt as a homestead. It is true that our constitution and statutes provide that “occupation as a residence by the family of the owner” of property is necessary to impress upon it the character of a homestead, but nearly all the courts, including our own, concur in holding that when a home, residence or settlement has been once acquired on lands, it is not necessary that there should be a continuous actual occupancy to secure the homestead so acquired from forced sale. (McDowell v. Diefendorff, Dassler’s Digest, p. 92, §23; Mixon v. George, 18 Kas. 253.)
Again, this court has held that the proceeds arising from the forced sale of a homestead are exempt from any execution issued on any judgment which was not a lien on such homestead, so long as the judgment debtor desired and expected to use the money in purchasing another homestead or in redeeming the former homestead from the sale. (Mitchell v. Milhoan, 11 Kas. 617.)
In Williams v. Swetland, 10 Iowa, 51, it was decided that 'where the owner, being a married man, lived upon premises in that state with his housekeeper, and his wife and children lived in Massachusetts, and had a home there, that the premises in Iowa were occupied as a homestead. •
These decisions clearly establish the doctrine that our homestead laws, beneficial in their operation and founded in a wise policy, should be liberally construed, so as to carry out their spirit. Considered in this light, in this case there was such an actual purpose and intention of present occupancy, accompanied with such acts on the part of the defendant in error in the commencement and completion of his ■dwelling, together with his residence therein with his family, that this might reasonably be held to amount in substance to actual occupancy at the date of the levy. While therefore we hold, within the terms of the law, that occupation is an essential element to secure a homestead inviolability, under the exceptional circumstances which appear from the findings ■of the court, the intentions and acts of the purchaser of the land in controversy may be construed into a legal equivalent of actual occupancy of such premises. Law is entitled to and can command respect only when it is reasonable and adapted to the ordinary conduct of human affairs, and the •construction we have given above to the provisions securing homestead exemptions is certainly within their spirit, and more in consonance with a reasonable interpretation thereof, than if we adopted the opposite conclusion. In support of these views, we quote the language of our brother Brewer, in the case of Edwards v. Fry, 9 Kas. 425:
“We know the spirit which animates the people of Kansas, the makers of our constitution and laws, on this homestead •question. We note the care with which they have sought to preserve the homestead inviolate to the family. We have no disposition to weaken or whittle away any of the beneficent, constitutional, or statutory provisions on the subject. We know that the purchase of a homestead, and the removal upon it, cannot be made momentarily cotemporaneous. It takes time for a party in possession to move ■out, and then more time for the purchaser to move in. Repairs may have to be made, or buildings partially or wholly erected. Now the law does not wait till all this has been done, and the purchaser actually settled in his new home, before attaching to it the inviolability of a homestead. A purchase of a homestead with a view to occupancy, followed by occupancy within a reasonable time, may secure ah initio a homestead inviolability.”
In the case of Swenson v. Kiehl, ante, 534, he further remarks, that “occupancy is not always possible at the instant of purchase, and that a reasonable time is allowable in which to prepare for and complete thé removal to and occupation of the intended homestead; but the purchase must be for the purpose and with the intent of present, and not simply of future, use as a residence.”' (See also, Neal v. Coe, 35 Iowa, 407.)
The order and judgment of the district court are affirmed.
Brewer, J., concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This case involves a construction of chapter 79 of the General Statutes, entitled “An act for the relief of the poor.” The facts are, that in 1872 the small-pox broke out in epidemic form in Silver Lake township, in Shawnee •county, and the township trustee employed the plaintiff’s intestate, who was a practicing physician and the keeper of a country store, to attend upon the sick and supply them with necessaries out of his store. For the services and supplies thus rendered and furnished, he presented a bill against the county, which was disallowed by the commissioners, and thereupon he brought this action to recover for them. The district court decided in favor of the county, and that judgment is now brought to this court for review. The simple question is, as to the power of the trustee to bind the county by such a contract, for of the existence of the disease and the performance of the plaintiff’s intestate, there is no dispute. The plaintiff’s counsel have furnished us with an elaborate brief, with decisions from the courts of other states in exposition of their poor-laws', yet after all it is simply a question of statutory construction; for in the absence of legislative authority, it will not be contended that the county can be made liable for such expenses. The fact that the township trustee is ex officio an overseer of the poor in his township, does not vest in him unlimited discretion and authority, for he is only authorized to discharge such duties as “may be prescribed by law.” (Gen. Stat., ch. 79, §1.) An examination of the statute discloses that the powers of such trustee vary, as the county has or has not a county poor-house. It is not expressly found as a fact that Shawnee county has a poor-house, though it would seem that such is the fact from incidental references thereto in the testimony. But it is immaterial that there is no finding of fact thereon, for whoever would found a liability against the county upon the contract of the township trustee, because of the non-existence of a county poor-house, must himself affirmatively establish the fact of such non-existence. We must treat the case -therefore as one involving the powers of a township trustee in a county in which there is a regularly-established poor-house. Now § 7, upon which counsel place much stress, by its terms applies only to “such counties as have in them no common poor-house,” and the power of a trustee to contract for either the permanent or temporary keeping of the poor, exists alone in such counties. No fair construction of the section, either in letter or spirit, can extend the power of the trustee either as respects the permanent or temporary keeping of the poor, to those counties which have and maintain a common poor-house. Passing by this section, we find elsewhere in the act that the trustee has power to determine who are paupers, with a legal settlement in the township, and, upon such determination, have such paupers removed to the county poorhouse, to be there supported at the expense of the county; (§§ 10 and 30.) The township trustee has also the power, in case any person, not an inhabitant of his township, is lying sick or in distress, without friends or money, to grant temporary relief; (§24.) Such relief may be, if deemed best, by removal to the county poor-house; (§13.) Where there is a doubt as to the place of legal settlement, the relief is to be as in other cases; (§12.) These, with the exception of certain powers as to the children of paupers, and examination into the care actually given to the poor by those in charge, which it is unnecessary to mention, are all the powers conferred upon the trustee. His powers are, in brief, to furnish temporary relief to pauper strangers, and to determine who are resident paupers, and have them removed to the county poor-house. In other words, so far as resident paupers are concerned, his power is limited to furnishing them a home in the county poor-house. It is not claimed that the parties assisted in this case were other than residents, so that the limit of the trustee’s powers was to furnish them a home in the poor-house. He was not authorized to grant temporary relief, and of course any contract therefor was not binding upon the county. It may be said that such construction leaves a large number of deserving cases, such as those disclosed in the present suit, without any means of providing succor. Even if this were strictly true, it would not furnish reason for the courts to legislate liability upon the public, and such succor would have to rest upon appeals to private charity. But it is not strictly true, for by § 8 the county commissioners may, in their discretion, extend relief to the poor outside of the county poor-house. But that is a power vested in them alone, and no other officer can act for them, or in his discretion create a liability for such relief against the county.
We see nothing in the findings upon which to base any •estoppel on the county. .While we are compelled to affirm this judgment, and deny the existence of any legal liability upon the county, we cannot forbear the remark that the circumstances were apparently such as ought, in the first instance, to have called for some provision by the county commissioners, and that an enlightened liberality, as well as a cautious prudence, would justify the commissioners in making a reasonable appropriation for the. services and supplies, although rendered and furnished without their previous sanction and direction.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution for the embezzlement of certain United States treasury notes and certain national bank notes, amounting in the aggregate to $150. The information charged the defendant with receiving said notes as the “agent, servant, employé and bailee” of the prosecuting witness. Before the trial, the defendant moved the court to “compel the state to elect whether the defendant be put,to trial upon the charge,of embezzlement as agent, servant, employé, or as a bailee.” The court however overruled the motion, and the defendant excepted, and now assigns such ruling for error. He claims that the information charges two separate- and distinct crimes — one for embezzlement as an agent, servant and employé under § 88 of the crimes and punishments act (Laws of 1873, pp. 177, 178), and the other for embezzlement as a bailee under § 90 of said act. (Gen. Stat. 335.) The information was intended to be drawn under ■ § 88, and whether it charges any crime or not under § 90, it certainly does not charge any .crime not included in said § 88. It really charges only one crime — that of embezzling notes (substantially money) held by the defendant as the “agent, servant, employé and bailee” of the prosecuting witness — unless this one crime includes within itself the less crime of embezzling the notes as the bailee only of the prosecuting witness; and in such a case no objection can be urged against the information, for an information may in a single count charge several offenses, provided that one of such offenses includes all the others. This is well illustrated by an information charging murder in the first degree, for the single charge of murder in the first degree may include all the several degrees of felonious homicide. That, the defendant held the money as “agent, servant, employé and bailee,” and that he converted the same to his own use, must for the purposes of said motion be admitted. And could he, by so holding- and using the money, be convicted and sentenced for two or more separate and distinct offenses? Could he be imprisoned the aggregate amount of the-time prescribed for two or more offenses, instead of for the time prescribed for one offense only? We think not.
I. The holding of the money was a single holding, and the conversion was a single conversion, although the defendant held the money in the compound capacity of “agent, servant, employé and bailee;” and although perhaps he might be convicted under either of said sections, he could not be convicted under both, so as to receive a double punishment. We think it is true, as is claimed by the defendant, that a person who is not an agent, servant, or employé, may be able to commit the crime of embezzlement as a bailee under § 90, but we do" not think that a person who is not a bailee could commit the crime of embezzlement as an agent, servant or employé. Whenever a person holds specific money belonging to his employer, holding it as the agent, servant and employé of such employer, and holding it in such a capacity that he might commit embezzlement with reference thereto, he also holds it in the capacity of a bailee. This is in accordance with the definitions of the words “bailee” and “bailment,” as given by Blackstone, Story, Edwards and Bishop. (2 Black. Com. 451; Story on Bailments, §2; Edwards on Bailments, §2; Bishop on * Statutory Crimes, § 423.) And we think this is true whether such a bailee could be'convicted of embezzlement as a bailee under § 90, or not. For if he could be so convicted, then the one offense would be included in the other; but if he could not, then the word bailee, as used in said information, would be an unnecessary though not an improper word. For when a person is charged with embezzling his employer’s goods, as an “agent, servant or employé,” he is also necessarily charged with embezzling them as a bailee, whether the word “bailee” is used or not; and the mere use of the word bailee would certainly not destroy the validity of an otherwise good information. Mr. Bishop, in his work on Statutory Crimes, §424, uses the following language:
“ Where the prosecutor. had given the prisoner money to buy coals, which the latter was to bring in his own cart to the former for hire, and the prisoner bought the coals in his own name, and on his way to the prosecutor’s abstracted some of them for his own use, it was held that . . . here was a bailment of the coals, which in latv were the prosecutor’s, though they had never come into his own hands, and here was a sufficient act of conversion. So if a carrier is employed to deliver a boat’s load of coals, in his own cart, to persons named in a list, and he fraudulently sells some of them and takes the money to his own use, he may be convicted of the larceny of these coals as a bailee. And it was laid down in another case that a carrier who, receiving money to procure goods, obtains the goods which he duly delivers, but fraudulently retains the money, may be convicted of the larceny of the money as bailee.” See' also, 2 Wharton’s Crim. Law, § 1955.
II. The defendant did not ask the court to give any instructions to the jury, and to those given no exceptions were taken; but even if exceptions had been taken, we do not think the judgment could be reversed because of any erroneous instructions.
III. Neither can we say that the court below erred in overruling the defendant’s motion for a new trial. We have already sufficiently mentioned the instructions. We shall, now proceed to consider the evidence. It seems from the evidence that the prosecuting witness (a woman) furnished the defendant with $150, in United States treasury notes and national bank notes, with which to purchase for her a certain lot in Wichita, -Kansas!The defendant never purchased the lot nor returned the money, but claimed that he had either lost the same or that it had been stolen from him. Whether the money was so lost or stolen, or was-converted by the defendant to his own use, was the only material question of fact submitted to the jury about which any serious doubt can be entertained. The defendant testified on the trial that he did not convert said money to his own use, but that it was either lost or stolen from him; and there was no evidence introduced on the trial except circumstantial evidence showing otherwise. The money was delivered by the prosecuting witness to the defendant about 9 o’clock on the morning of the 23d of August, 1878. He first went to Ritter’s saloon, and then to the office of the register of deeds to see that the title to the property which he was about to purchase was all right. When he got there he found that he did not have the numbers of the property. He then went to the office of the agent who had the property for sale, and got the numbers. He then went to Ritter’s saloon, where he commenced to drink intoxicating liquors. He arrived at Ritter’s saloon about ten o’clock, and remained there about an hour. He then went to Schutzler’s saloon, where he continued drinking, and"remained there about half qn hour. He then went to Lemkin’s saloon, where he still continued drinking; but about 2 o’clock in the afternoon, being very drunk, he went to sleep in a chair. How long he slept is not shown. He testified that when he waked up he felt for the money and found that it was gone. From the time that the defendant entered Ritter’s saloon in the morning until he went to sleep in Lemkin’s saloon in the afternoon, Jacob Ritter was with him, and he did not see him have any money, except some change, with which he purchased drinks. • After he waked up in Lemkin’s saloon, he remained there until five o’clock p.m., and it does not seem that in the mean time he informed any ,person that he had lost said money. At five o’clock, or about that time, the prosecuting witness becoming very uneasy at the defendant’s failure to return and to inform her what he had done, started to hunt for him. She found him in Lemkin’s saloon, and finding that he had not purchased the property for her, she demanded a,return of her money. He then felt in his pockets, and said that he had lost it, or that it had been stolen from him. She then called a policeman and had him arrested, and he still failing and refusing to account in any other manner for said money, the county attorney prosecuted this action.' Upon the foregoing facts, proved in much greater detail than we have stated them, the jury found the defendant guilty, and the court below sustained the verdict. The jury evidently did not believe the defendant’s evidence concerning the disposition of said money. We might also here state that the prosecuting witness was the keeper of a house of prostitution, and the defendant seems to have been one of her particular friends. There were also several little things proved on the trial which we have not stated, and which might properly have had weight with the jury in causing them to return the verdict they did. Taking all the evidence together, we cannot say that the court below erred in sustaining the verdict of the jury. The circumstantial evidence tending to show that the defendant converted the money to his own use, and that he did not lose it, and that it was not stolen from him, was probably sufficient to overcome his own direct evidence to the contrary. The defendant testified that he was to take the deed to said lot in his own name. Now suppose that this was so, it would not make said money his. Until he used the money as directed by the prosecuting witness, the money was hers, and she could have revoked her orders, and have ordered its return. Suppose that the agent had refused to sell, or suppose that the defendant had found, when he went to the register’s office, that the title to the property was not clear: the purchase would not have been made, and the money should then have been returned. The statutes with reference to trusts, we think, have no application to this case; but still, with reference to trust estates, see the latter part of § 8 of the statute concerning trusts and powers: Gen. Stat. 1097.
Some of the questions involved in this prosecution have •been settled by the decision in the case of The State v. Smith, 13 Kas. 274. That was a criminal prosecution under said § 88, charging the defendant wdth embezzling various funds (including money) coming into his hands as county treasurer.
The judgment of the court below, will be affirmed.
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Lewis, J.:
Claimant Gregory S. Lawson is employed by the City of Kansas City (City) as a full-time police officer. He obtained an award in a workers compensation case in the amount of $2,300 for medical expenses for an injury he incurred. The City appeals from that award, arguing that claimant’s injuries did not arise out of or in the course of his employment.
We agree with the City, and we reverse the holding of the Workers Compensation Board (Board) in favor of claimant.
As stated earlier, claimant is and was a full-time police officer for the City. At the time he sustained the injury in question, he was ostensibly off duty and dressed in civilian clothes.
The incident that prompted the workers compensation claim occurred at a sports bar in the early hours of the morning. Earlier that evening, claimant, along with other off-duty police officers and their spouses or girlfriends, had gone to the bar to play sand volleyball. During the evening leading up to the altercation, claimant and his friends were all dressed in civilian clothing, playing volleyball, and drinking beer.
At some point during a volleyball game, Jeremy Lehman began using profanity and directing threats towards claimant’s group. Although claimant believes he could have arrested Lehman for disorderly conduct, neither he nor any of his friends made any effort to do so.
At about 2 a.m., the claimant’s group decided to leave the bar. In the process, they were confronted by Lehman. Claimant told Lehman that he was a police officer and that he did not want any trouble. Lehman began to make disparaging remarks about police officers and attempted to provoke a fight. Once again, claimant told Lehman he was a police officer and that all he and his friends wanted to do was to go home. At this point, Lehman hit claimant in the face, causing damage to claimant’s teeth for which he incurred substantial dental bills.
After hitting claimant, Lehman was subdued by claimant and his friends, but he was not arrested. Apparently, neither claimant nor any of his friends exercised any authority as police officers. The group left the bar and went home.
Claimant, or some member of his group, later signed a complaint charging Lehman with simple battery. That charge was later dismissed in exchange for a covenant not to sue the City or the other police officers who were involved in the altercation. Claimant, on the other hand, was disciplined by the police department for leaving Lehman bleeding in the parking lot without attempting to offer him aid.
Claimant filed a claim for workers compensation benefits, alleging he was injured in the course of his employment. He suggests that his injury was compensable because he could have exercised his authority and could have arrested Lehman.
The matter was tried before an Administrative Law Judge (ALJ), who denied benefits to claimant, holding:
“The claimant has contended that because he was subject to call 24 hours per day as a police officer, that the medical expenses incurred by him should be covered by the Kansas Workers’ Compensation law. Although it is true that the claimant and other police officers are subject to call on a 24-hour per day basis, the claimant had not been recalled to duty at the time of his injury. The claimant was definitely off duty, and in civilian clothing. At the time of the altercation, the aggressor had not been placed under arrest by any of the off-duty officers. Therefore, the claimant has not proved by a preponderance of credible evidence that the personal injury by accident sustained by him on August 18,1992 arose out of and in the course of his employment with the respondent. [Citation omitted.]”
Claimant appealed the ALJ’s decision to the Board. The Board reversed the ALJ and granted claimant’s medical expenses, stating:
“[I]t appears apparent that claimant’s employment as a police officer was a contributing factor to the assault. The evidence in the record indicates the assault upon claimant and his fellow officers stemmed directly from their employment status. This, coupled with the claimant’s obligation to be on duty in a police situation, convinces the Appeals Board that claimant was on duty at the time of the assault.” (Emphasis added.)
DID THE INTURY ARISE OUT OF CLAIMANT’S EMPLOYMENT?
The principal question on this appeal is whether, under the facts, claimant’s injury arose out of and in the course of his employment.
Ordinarily, the question presented would be one of fact and our function would simply be to determine if there is substantial competent evidence to sustain the Board’s decision. Harris v. Bethany Medical Center, 21 Kan. App. 2d 804, 805, 909 P.2d 657 (1995). However, in this case, the facts are undisputed, and the real question is applying those facts to the law. Under the circumstances, we will conduct a de novo review in order to determine what the facts establish and what the law requires in the face of those facts. See Shade v. Wheatcraft Industries, Inc., 248 Kan. 531, 536, 809 P.2d 538 (1991).
It is important to note that in a case of this nature, to be compensable, a claimant must prove not only that his or her injuries “arose out of” his or her employment; claimant must also prove that his or her injuries were “in fhe course of” his or her employment. Both sides of this coin must be proven, and the burden falls upon the claimant.
We have no problem with concluding that the injuries may have arisen “out of” claimant’s employment. City police officers such as claimant are subject to duty 24 hours per day. The agreement between the City and the Fraternal Order of Police provides:
“Section 28.1 Off Duty Responsibility
“Since all police officers are presumed to be subject to duty twenty-four (24) hours per day, any action taken by a member of the force on his time off, which action would have been taken by an officer on active duty if present or available, provided an emergency exists which would constitute a felony violation or potential felony violation or incident which could involve bodily injury, in accordance with the Rules and Regulations of the Department, shall be considered police action, and the employee shall have all of the rights and benefits concerning such action as if he were then on active duty.” (Emphasis added.)
Not only is claimant presumed to be subject to duty at the time of his injuries, it does appear that the animosity of Lehman towards claimant was triggered by his status as a city police officer. It can be concluded that one of the risks of being a police officer is having to deal with persons like Lehman, whether on or off duty, under the circumstances shown in this action.
We have no specific Kansas case which deals with this issue. However, courts in other jurisdictions have held that when a police officer is assaulted because of his or her status as a police officer, the resulting injury can be said to “arise out of” his or her employment. See, e.g., Jordan v. St. Louis County Police Dept., 699 S.W.2d 124 (Mo. App. 1985).
The facts of this case show that claimant was a police officer and that he was assaulted largely because of his status as a police officer. We adopt the reasoning of our sister states on this issue and hold that when a police officer, either on or off duty, is assaulted directly because of his or her status as a police officer, the assault, being one of the risks of employment, can be said to “arise out of” the status of being a police officer. In plain English, what we are saying is that in this case, had claimant not been a police officer, Lehman probably would not have hit him. We therefore conclude that claimant’s injuries did, indeed, “arise out of” his employment.
IN THE COURSE OF HIS DUTIES
The second part of the equation is more difficult. As pointed out earlier, it is the obligation of claimant to prove not only that his injuries arose out of his status as a police officer but that they arose in the course of his duties as a police officer. We have examined the record very carefully, and we are unable to conclude that claimant was acting “in the course of his duties” as a police officer when he was injured. Accordingly, claimant is not entitled to compensation.
Claimant may have been a police officer subject to being called to duty at any time. The fact remains that when Lehman hit him, claimant was in a sports bar, wearing civilian clothes, playing volleyball, and drinking beer. He was not dressed as a police officer, he did not act as a police officer, and he performed no duties as a police officer. The mere fact that he had the authority to act as a police officer is irrelevant. He did not exercise that authority.
The aftermath of this incident is instructive. Lehman was drunk .and disorderly in a public place and battered a patron. Under most circumstances, an individual who commits such an act will be arrested on the spot if police officers are present. In this case, a number of off-duty police officers were present, including claimant, but none of them arrested Lehman or attempted to exercise their authority as police officers. Lehman struck an off-duty police officer, and he was charged with “simple battery.” He was not charged with the more serious crime of “battery of a law enforcement officer.” This seems to indicate that the charging authorities did not believe claimant was acting in his capacity as a police officer when he was hit by Lehman.
. It is also instructive to consider the subsequent discipline of claimant. As a police officer, claimant was obligated to render aid to a downed and bleeding Lehman. He did not do so and was disciplined for it. This is simply another example of claimant’s failure to act in his capacity as a police officer.
If claimant had decided to place Lehman under arrest and had been hit in the process, we do not doubt but that he would have been acting “in the course of his employment.” These are not the facts with which we deal. We do not suggest that off-duty police officers cannot engage in beer drinking and volleyball in a sports bar on their own time. We only suggest that when doing so they are not acting “in the course of their duties” as police officers. It is further clear from the evidence that after the altercation with Lehman, neither claimant nor any of his fellow off-duty officers ever acted in the course of their duties as police officers.
Again, there is no specific Kansas case in point. However, in most other states, compensation has been denied when an officer was injured while clearly not exercising any police authority. For example, in Kansas City, Missouri Police Dept. v. Bradshaw, 606 S.W.2d 227 (Mo. App. 1980), an off-duty police officer was killed in an automobile motorcycle accident while he was traveling to his part-time job as a private security officer. The officer wore his police department uniform while performing his private security guard work and was wearing the uniform at the time of the accident. The Missouri Court of Appeals held that the officer’s injuries did not arise out of and in the course of his employment with the police department. The court focused not on his authority, but on what he actually did. The court concluded that while the officer “may have been authorized to perform some law enforcement functions while off duty, the fact remains that at the time of this accident he was not performing any law enforcement functions but was going on a mission wholly personal to himself.” 606 S.W.2d at 232. In the case at bar, certainly claimant may have been authorized to perform law enforcement functions while off duty, but at the time of his injuries, he was not performing any law enforcement functions and was surely on a mission wholly personal to himself. Other cases expressing this philosophy are: Luna v. Workers' Comp. Appeals Bd., 199 Cal. App. 3d 77, 244 Cal. Rptr. 596 (1988); Ottawa County v. King, 394 P.2d 536 (Okla. 1964); and Leonard v. New York City Housing Authority, 40 App. Div. 2d 1056, 338 N.Y.S.2d 927 (1972), aff’d 352 N.Y.S.2d 446 (1973).
We adopt the reasoning of our sister states in the cases cited above. We hold that when a police officer is injured under circumstances where he or she was not and did not perform any law enforcement functions, was off duty and dressed in civilian clothes, and was on a purely personal venture, such injuries do not arise in the course of his or her duties as a police officer and are not compensable.
We reverse the compensation award in favor of claimant made by the Board.
Reversed. | [
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Brazil, C.J.:
Jeffrey D. Baker, the Rice County sheriff, sought district court review of the county attorney’s determination that a recall petition to remove him from office was legally sufficient. The district court agreed with Baker and found the petition legally insufficient. The recall committee (the Committee) appeals. We affirm.
The grounds for recall as stated in the recall petition are as follows:
“September 6, 1993 he was at a party in Lyons and became very intoxicated. He began threatening to go to another officers [sic] residence and cause him bodily harm creating a disturbance. The police were called to restrain him. Officers’ [sic] Atteberry and Detmer responded. Detmer drove the Sheriff home because he was too drunk to drive and then took custody of his truck and hid it in a garage controlled by the police department in hope of preventing further illegal acts by the Sheriff. (MISCONDUCT)
“October 31, 1993 he was involved in another disturbance. His wife fled their residence after being the victim of a battery and having terroristic threats made against her according to police reports. She related these crimes to Sgt. Detmer and he responded to the residence with officers from the Highway Patrol and Sheriff’s Department for back-up support. (MISCONDUCT)
“In November of 1993 over half of the county Drug Task Force signed a letter asking the Sheriff to resign due to his inability to function as a leader. He refused, so they resigned. After the displays of violence and drunkedness [sic] they were uncomfortable with his decision making abilities. (INCOMPETENCE JUDGED BY HIS PEERS)”
The district court found the recall petition failed to meet the requirements of K.S.A. 25-4302. Specifically, the court found the first two allegations in the recall petition lacked the required nexus between the alleged misconduct and Baker’s official duties. The court found the third allegation was not specific as to particular official duties.
The Committee first contends the district court erred under the grant of review stated in K.S.A. 25-4331 by reviewing the sufficiency of the recall petition before the actual signatures were secured.
The right to recall public officials is guaranteed by Article 4, Section 3 of the Kansas Constitution, which states: “All elected public officials in the state, except judicial officers, shall be subject to recall by voters of the state or political subdivision from which elected. Procedures and grounds for recall shall be prescribed by law.” The procedures and grounds necessary to exercise this right are contained in the Kansas Recall of Elected Officials Act, K.S.A. 25-4301 et seq. (Act or Recall Act). Resolving this first issue requires interpretation of the act.
“Interpretation of a statute is a question of law. An appellate court’s review of a question of law is unlimited.” Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995); see State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). “ Tt is a fundamental rule of statutoiy construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained.’ ” City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). “When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992).
The recall of a local official, other than an elected county election officer, is proposed by filing a petition with the appropriate county election officer. K.S.A. 25-4318. In addition to the requirements of K.S.A. 25-4320, the petition must contain the names and addresses of the recall committee and sponsors and must be properly subscribed by the members of the committee prior to circulation for signatures. K.S.A. 25-4322. Within 90 days of this filing of the petition, the recall committee must secure the necessary signatures, K.S.A. 25-4324, and file the petition again with the county election officer. K.S.A. 25-4325. Within 30 days of the date of this second filing, the county election officer shall review the petition and shall notify the recall committee and the local officer sought to be recalled whether the petition was properly or improperly filed. K.S.A. 25-4326. Notice on all recall matters must be effectuated pursuant to the provisions of K.S.A. 25-4322.
In addition to the above steps involving the county election officer, the county or district attorney of the county where the petition is required to be filed shall determine the sufficiency of the grounds stated in the recall petition. K.S.A. 25-4302. (Hereafter, reference will be made only to the county attorney.) It is not clear from the statute when and hów the county attorney’s determination regarding the sufficiency of the petition takes place, nor when an aggrieved party may seek judicial review of the county attorney’s determination.
Arguably, the county attorney’s determination must take place after, the petition is initially filed with the county election officer. By stating that “[t]he recall of a local officer is proposed by filing a petition with the county election officer,” K.S.A. 25-4318, the Act seems to contemplate this filing with the county election officer as the initial step in the process of recalling a local officer.
K.S.A. 25-4331 provides for review in the district court of determinations relating to the'recall of local officers and states:
“Any person aggrieved by a determination made by the county election officer or county attorney of the county where petitions are required to be filed may bring an action to have the determination reviewed within thirty (30) days of the date on which notice of determination was given by action in the district court of such county.”
, The Committee argues that K.S.A. 25-4331 does not authorize the district court to review a county attorney’s determination regarding the sufficiency of a recall petition until the county election officer determines the petition is properly filed pursuant to K.S.A. 25-4326, i.e., after the petition has been circulated for signatures. Tfie Committee .asserts th^t .allowing review of the.county attorney’s determination prior to that time would provide two opportunities to challenge the sufficiency of a recall petition because K.S.A. 25-4331 also provides for review of a determination by the county.elections officer.
The Committee’s argument is misplaced. The plain language of K.S.A. 25-4331 provides for review when a person is aggrieved by a determination of the county attorney by bringing an action to have the determination reviewed “within thirty (30) days of the date on which notice of determination was given by action in the district court of such county.” (Emphasis added.) There is no language in the statute to suggest that an aggrieved person must wait to seek review until the petition is filed with the county election officer pursuant to K.S.A. 25-4326. The plain language of the statute also suggests that the clause emphasized above refers to the date on which the recall committee or local officer receives notice, pursuant to the notice requirements of K.S.A. 25-4322, of the county attorney s determination that the petition is either sufficient or insufficient.
Moreover, the Committee’s fear that an aggrieved party will have two opportunities to challenge the county attorney’s determination is unwarranted. Should an aggrieved party seek judicial review of a county attorney’s determination prior to the county election officer’s determination of sufficiency pursuant to K.S.A. 25-4326, and then later seek judicial review of the county election officer’s determination, further review of the prior determination by the county attorney would generally be foreclosed under the law of the case doctrine. See, e.g., Steele v. Guardianship & Conservatorship of Crist, 251 Kan. 712, 720-21, 840 P.2d 1107 (1992) (under the law of the case doctrine, once issues are decided by the court, those issues should not be relitigated or reconsidered unless they are clearly erroneous or unless some manifest injustice has been imposed).
The Committee also argues that the reference in K.S.A. 25-4331 to a determination by the county attorney does not refer to the determination by the county attorney of the sufficiency of the petition pursuant to K.S.A. 25-4302 but rather to review in those instances where the officer being recalled is the county election officer. See K.S.A. 25-4318. However, the Committee somewhat contradicts this position by also suggesting that judicial review of the county attorney’s determination in the present case would have been appropriate under K.S.A. 25-4331 had the county attorney found the petition insufficient rather than sufficient. The Committee fails to explain this inconsistency.
We conclude that under K.S.A. 25-4331, the review of the county attorney’s determination of the sufficiency of the petition pursuant to K.S.A. 25-4302 may be sought within 30 days of notice of the county attorney’s determination. The district court did not err in exercising review of the sufficiency of the recall petition.
The Committee next contends the court erred in finding the grounds for recall stated in the petition were insufficient pursuant to K.S.A. 25-4302. Baker essentially invokes the district court’s reasoning and contends the court did not err in finding the petition insufficient. Resolving this issue again involves application of the rules of statutory construction stated above.
In Unger v. Horn, 240 Kan. 740, 732 P.2d 1275 (1987), the appellants, elected and acting members of a local school board, appealed the district court’s finding that a recall petition was legally sufficient under K.S.A. 25-4302. The initial determination that the recall petition was legally sufficient was made by the local county election officer. The case preceded the 1987 amendment to K.S.A. 25-4302 which placed the initial determination of legal sufficiency of a recall petition with the local county or district attorney rather than with the local county election officer. The only question on appeal was whether the petition sufficiently stated a ground for recall pursuant to K.S.A. 25-4302, specifically misconduct in office, by alleging that the board members had violated the Kansas Open Meetings Act. 240 Kan. at 742-43.
The Unger court stated the rule of statutory construction in recall cases:
“Where a state constitutional provision provides for the recall of public officials, recall is viewed as a fundamental right which the people have reserved to themselves. When the power of recall is a fundamental right, statutes governing the exercise of the power are to be liberally construed in favor of the ability to exercise it, and any limitations on that power must be strictly construed. 63A Am. Jur. 2d, Public Officers and Employees $ 190.” 240 Kan. at 741.
The court defined misconduct in office as “ ‘[a]ny unlawful behavior by a public officer in relation to the duties of his office, willful in character.’ ” 240 Kan. at 743 (citing Wysong v. Walden, 120 W. Va. 122, 125, 196 S.E. 573 [1938]). The court held that an allegation of willful violation of the Kansas Open Meetings Act constitutes a legally sufficient claim of misconduct under K.S.A. 25-4302. 240 Kan. at 743. However, the court also held that the allegations in the recall petition failed to state a ground for recall with particularity as required by the Recall Act. 240 Kan. at 747. After comparing the statutes and decisions of other states and re viewing the legislative history of our Recall Act, the court found that the legislative intent in creating the Act was to make “the constitutional provisions for recall meaningful and [prevent] undue harassment of elected officials.” 240 Kan. at 746. The court found that the petition failed to contain more than a general statement of the ground for removal. 240 Kan. at.747.
In Cline v. Tittel, 20 Kan. App. 2d 695, 891 P.2d 1137, rev. denied 257 Kan. 1091 (1995), the county attorney appealed the district court’s decision reversing his determination that a recall petition filed against members of the local school board failed to state sufficient grounds for recall. The petition alleged a school board member voted to discontinue a wrestling program notwithstanding the fact that the agenda for the meeting “ ‘did not inform the public that discontinuance of the wrestling program would be considered by the Board.’ ” 20 Kan. App. 2d at 696. The issue on appeal specifically required the court to interpret the scope of the language in K.S.A. 25-4302, which requires that the county or district attorney “ ‘shall determine the sufficiency of the grounds’ ” stated in the petition for recall of a local officer. 20 Kan. App. 2d at 698. This court held that the county attorney, when reviewing the petition, does not determine “whether the grounds asserted should subject a particular local officer to recall, but whether the facts stated in the petition allege one or more of the four statutory grounds for recall listed in K.S.A. 25-4302 with sufficient particularity in not more than 200 words.” 20 Kan. App. 2d at 701.
In the present case, the Committee views the scope of the county attorney’s review under K.S.A. 25-4302 in much the same way as the recall committee in Cline. The Committee essentially contends that the county attorney’s review should be limited and that the county attorney should defer to the electorate concerning the sufficiency of the allegations in the petition. Baker views the scope of the county attorney’s review.as somewhat larger as did the county attorney in Cline. He contends the allegations of. “misconduct in office” and “incompetence ... to perform duties-prescribed by law,” K.S.A. 25-4302, require the county attorney to determine that the allegations contain a sufficient nexus between the conduct alleged and a duty of the elected official.
After reviewing the Act and the case law, we conclude the legislature has intended that the county attorney undertake more than the ministerial review described by Cline. Several reasons lead to. this conclusion.
First, the plain meaning of the statute suggests the grounds for recall must meet a minimum threshold. The grounds for recall are “conviction of a felony, misconduct in office, incompetence or failure to perform duties prescribed by law.” K.S.A. 25-4302. The Cline court seems to suggest that the statute is satisfied so long as the ground alleged is keyed to one of the grounds stated in the statute and is stated with particularity. See 20 Kan. App. 2d at 701 (the county attorney, checking for form and word count, only determines “whether the facts stated in the petition allege one or more of the four statutory grounds for recall listed in K.S.A. 25-4302 with sufficient particularity in not more than 200 words.”). Thus, for example, it seems that an allegation that the elected official had answered a telephone call in a rude manner, if stated under the guise of “misconduct in office” in 200 words or less, would be legally sufficient under the Cline court’s interpretation of K.S.A. 25-4302.
However, by providing “conviction of a felony” as the first ground for recall, the legislature clearly contemplates that the allegations must meet some level of seriousness. It would be incongruous to even list “conviction of a felony” as a ground for recall if mere rudeness could lead to recall.
Second, the majority’s decision in Unger suggests a more meaningful level of review by the county attorney than was employed in Cline. In Unger, the court assessed the county election officer’s determination on two levels: (1) whether the grounds for recall in the petition were adequate and (2) whether the grounds for recall were stated with sufficient particularity. In discussing the grounds requirement, the court faced the question of whether an allegation of misconduct for violating the Kansas Open Meetings Act was' sufficient. If the allegation of misconduct was itself enough, there would have been no need to further define misconduct in office as “ ‘[a]ny unlawful behavior by a public officer in relation to the duties of his office, willful in character,’ ” 240 Kan. at 743, and to determine that an allegation of violating the Kansas Open Meetings Act amounted to misconduct in office.
Moreover, in so defining the ground of “misconduct in office,” the court not only indicates that the alleged misconduct must be “unlawful,” but also that a petition that alleges misconduct in office must show that the alleged misconduct actually treads upon the duties of office of the elected official.
Third, the dissent • in Unger by Justice (now Chief Justice) McFarland suggests that the majority interpreted the Act as requiring some type of meaningful review by the county attorney. The dissent argues strenuously for interpreting the Act to read the review requirement under K.S.A. 25-4302 as ministerial in nature. See 240 Kan. at 752-53. The majority must have contemplated much more than a ministerial review function to draw such a dissent. In addition, the legislature’s intent concerning the scope of the county attorney’s review under K.S.A. 25-4302 can also be seen through its inaction since the Unger decision. Had the legislature desired to limit the review by the county attorney in fine with Chief Justice McFarland’s dissent, it has had ample opportunity to do so.
Finally, the legislature’s intent concerning the threshold a recall petition must meet in order to be circulated to the electorate can be discerned from the limitations provision contained in the Act. See K.S.A. 25-4323. The Cline decision suggests, as does Chief Justice McFarland’s dissent in Unger, that the electorate is capable of deciding whether the grounds for recall in the petition meet the requirements of K.S.A. 25-4302. This may be true. However, in creating the Act the legislature intended to make “the constitutional provisions for recall meaningful and [prevent] undue harassment of elected officials.” Unger, 240 Kan. at 746. In doing so, the legislature provided that “[o]nly one recall election maybe held to recall a particular local officer in a single term of office, and no petition for a second recall election within a single term shall be approved or circulated.” K.S.A. 25-4323. The danger of circulating a frivolous recall petition to the electorate, despite the electorate’s capability of determining the petition’s frivolity, is that the electorate would thereafter be foreclosed from recalling the official should a truly meritorious reason for recall arise; e.g., conviction of a felony. “ ‘In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under the various constructions suggested.’ ” State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994) (quoting Brown v. Keill, 224 Kan. 195, Syl. ¶ 3, 580 P.2d 867 [1978]). “ ‘The several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony and giving effect to the entire statute if it is reasonably possible to do so.’ ” Guardian Title Co. v. Bell, 248 Kan. 146, 151, 805 P.2d 33 (1991) (quoting Easom v. Farmers Insurance Company, 221 Kan. 415, Syl. ¶ 3, 560 P.2d 117 [1977]).
We hold that, for the recall of elected officials, (1) the ground of “misconduct in office” in K.S.A. 25-4302 requires the allegation in the recall petition to show some nexus between the alleged misconduct and the elected official’s duties in office; and (2) the grounds of “incompetence or failure to.pefform duties prescribed by law” in K.S.A. 25-4302 require the recall petition to show some nexus between the alleged conduct and the elected official’s duties as prescribed by law. Provided the grounds listed in the recall petition sufficiently meet the requirements of K.S.A. 25-4302, the truth or falsity of the grounds must still be determined by the electorate, not the county or district attorney. See Unger, 240 Kan. at 742.
Next, we must review the district court’s determination that the recall petition failed to meet the requirements of K.S.A. 25-4302.
The court found the first two grounds in the recall petition lacked the required nexus between the alleged misconduct and Baker’s official duties. The Committee seems to argue that the alleged misconduct has a sufficient nexus to Baker’s duties in office because the petition alleged violations of the law and the chief law enforcement officer of a county must at all times uphold the law. However, just as it did in the district court, the Committee has failed to make any legitimate showing on appeal of the duties of office for the Rice County sheriff. Accordingly, the Committee’s contention' that the petition alleged a sufficient nexus to those du ties must fail because the Committee has not met its burden on appeal to affirmatively show error. See Taiwo v. Wu, 249 Kan. 585, 597, 822 P.2d 1024 (1991) (“On appeal, the appellant has the burden to show error [and] it is the appellant’s burden to designate a record sufficient to establish the claimed error.”).
The third ground in the recall petition alleged “INCOMPETENCE JUDGED BY HIS PEERS” arising from an incident where over half of the county Drug Task Force resigned when Baker, who had been requested to resign by this group, refused to do so. The court found the third ground was “not specific as to the particular official duties.” In Unger, the court held: “The grounds stated in a recall petition must be specific enough to allow the official an opportunity to prepare a statement in justification of his or her conduct in office.” 240 Kan. at 747. We conclude that the general allegations in the recall petition relating to the sheriff’s leadership abilities in connection with the Drug Task Force do not meet the standards set by the court in Unger.
The Committee interprets the district court’s statement “is hot specific as to the particular official duties” as a finding similar to the finding in the first two grounds, that the Committee had failed to establish a nexus between the alleged conduct and the sheriff’s official duties. Assuming that was the basis of the district court’s finding, then the Committee’s contention on this point must fail for the same reason as on the first two: the Committee has failed to meet its burden to affirmatively show error.
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|
Lewis, J.:
Thomas Burrell (taxpayer) was arrested and charged with possession of marijuana. He ultimately pled guilty to attempted possession of marijuana and unlawfully arranging a sale or purchase of marijuana using.a communications facility. The taxpayer had been originally charged with failure to affix a tax stamp. The tax stamp violation was dismissed following a preliminary hearing.
After the criminal charges had been disposed of, the Kansas Department of Revenue (KDR) issued an assessment against the taxpayer, pursuant to K.S.A. 1995 Supp. 79-5202 for taxes and pen alties in the amount of $17,024. The taxes and penalties assessed were assessed as a result of the taxpayer’s alleged possession of marijuana. The taxpayer appealed this assessment to the Director of Taxation (Director). A hearing was held by the Director in which the assessment was upheld but the amount due was amended to $16,779. The decision of the KDR was appealed to the Kansas Board of Tax Appeals (BOTA), which reversed the assessment and held in favor of the taxpayer. The KDR appeals from the decision of the BOTA in favor of the taxpayer.
This is a first impression case dealing with whether the taxpayer had sufficient possession of the marijuana to trigger application of the Kansas Drug Tax Act (Act), K.S.A. 79-5201 et seq. It is important to note that this is a civil taxation case and has little, if anything, to do with the criminal charges filed against the taxpayer. It is also a case in which we are asked to review the decision of an administrative agency of this state. As a result, our standard of review is very different than what it would be in a criminal action.
The parties do not seriously dispute the facts on which the tax assessment is based.
The taxpayer was approached by a police undercover agent. She attempted, on several occasions, to sell the taxpayer marijuana. When her efforts were not successful, she introduced the taxpayer to Detective Tom Spencer of the Wichita Police Department. The taxpayer obviously was unaware of Detective Spencer’s status as a police officer. Detective Spencer also urged tifie taxpayer to buy marijuana. The taxpayer indicated that he was not personally interested in buying or selling drugs but that he knew people who might be. In time, an arrangement was formulated between the parties, whereby the taxpayer would act as a go-between to facilitate the purchase of marijuana by third parties from Detective Spencer.
Detective Spencer met with the taxpayer and gave him a sample of the marijuana. The taxpayer, or his acquaintances, were apparently satisfied with the quality of the product because a purchase was arranged. The taxpayer instructed Detective Spencer to place the marijuana in the automobile of the taxpayer’s father, which would be parked at the taxpayer’s place of employment. The doors to the vehicle were to be left unlocked when the marijuana was delivered.
The taxpayer borrowed his father’s car and parked it in the prearranged location. The taxpayer and Detective Spencer met at a prearranged site, and both men got into the front seat of the vehicle. The taxpayer gave Detective Spencer $4,800 in payment for the marijuana. Detective Spencer then got out of the vehicle, saying that he had to retrieve the marijuana and deliver it to the taxpayer. The taxpayer became suspicious when Detective Spencer got out of the car; he feared that Detective Spencer was going to “rip him off,” so he also got out of the car. The taxpayer and Detective Spencer were both out of the vehicle when Spencer placed a gym bag full of marijuana in the back seat. Almost immediately and before the taxpayer could get back into the vehicle, he was arrested. At no time was the taxpayer in the vehicle after the marijuana had been placed in the back seat. His arrest appears to have occurred almost simultaneously with the deposit of marijuana in the vehicle in question.
STANDARD OF REVIEW
This appeal is controlled by the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. Our scope of review is defined in K.S.A. 77-621. In practical terms, the following portion of 77-621(c) is applicable:
“The court shall grant relief only if it determines any one or more of the following:
(4) the agency has erroneously interpreted or applied the law;
(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
In the view of the KDR, the possession by the taxpayer was sufficient to trigger an application of the tax. The BOTA disagreed and held that the taxpayer did not have sufficient possession to incur tax liability. On appeal to this court, the KDR argues that the BOTA misapplied the law to the facts of the case. Inasmuch as there is little, if any, dispute as to the facts, we conclude that a de novo review by this court is appropriate. The question we must determine is the proper application of the law to facts which are agreed upon by the parties. As to that issue, our review is unlimited.
Since this action involves the review by one state agency of the decision of another, it follows that the standard of review for the BOTA over the KDR decision mirrors that of ours over the BOTA decision.
There are also certain presumptions and requirements of deference to expertise that come into the mix. For instance, a rebuttable presumption of validity “attaches to all actions of an administrative agency and the burden of proving arbitrary and capricious conduct lies with the party challenging the agency’s actions.” Kansas Racing Management, Inc. v. Kansas Racing Comm'n, 244 Kan. 343, 365, 770 P.2d 423 (1989).
The review of a BOTA decision was discussed by our Supreme Court in In re Tax Appeal of Harbour Brothers Constr. Co., 256 Kan. 216, 221-22, 883 P.2d 1194 (1994):
“Interpretation of a statute is a question of law. [Citation omitted.] Special rules apply, however, when considering whether an administrative agency ‘erroneously interpreted or applied the law’:
‘The interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to judicial deference. This deference is sometimes called the doctrine of operative construction. . . . [I]f there is a rational basis for the agency’s interpretation, it should be upheld on judicial review. . . . [However,] [t]he determination of an administrative body as to questions of law is not conclusive and, while persuasive, is not binding on the courts.’ [Citation omitted.]
“Deference to an agency’s interpretation is especially appropriate when ‘the agency is one of special competence and experience.’ [Citation omitted.] However, the final construction of a statute always rests with the courts. [Citation omitted.]”
One of the problems we have in the case at bar is that the BOTA would apparently owe deference to the KDR decision, and this court owes deference to the BOTA decision. We are mindful of the various considerations set forth above while resolving the issues on this appeal.
POSSESSION
K.S.A. 79-5201 through 79-5211 comprise what is commonly known as the Kansas Drag Tax Act. This Act imposes a tax on “dealers” of marijuana and other controlled substances. The tax rates are set out in K.S.A. 1995 Supp. 79-5202.
There is apparently no question in this case that the taxpayer was a “dealer” in marijuana as that term is defined in K.S.A. 1995 Supp. 79-5201(c) and used elsewhere in the Act. The KDR and the BOTA both concluded the taxpayer was a dealer, and the taxpayer does not seriously challenge that conclusion.
Although the Act has been controversial, it has been subjected to prolonged litigation in which it has been held to be valid and constitutional in all respects. See State v. Gulledge, 257 Kan. 915, 896 P.2d 378 (1995); State v. Berberich, 248 Kan. 854, 811 P.2d 1192 (1991); State v. Durrant, 244 Kan. 522, 769 P.2d 1174, cert. denied 492 U.S. 923 (1989); State v. Matson, 14 Kan. App. 2d 632, 798 P.2d 488 (1990), rev. denied 249 Kan. 777 (1991). While all of these decisions determined that the Act was valid and constitutional, unfortunately, none of the decisions cited above have defined what sort of possession is required to incur liability for the tax.
The principal issue is whether the taxpayer is liable for the tax under the facts shown. This will depend upon whether the taxpayer had sufficient possession of the marijuana in question to trigger application of the Act.
For our purposes, only two of the statutes which comprise the Act are particularly relevant.
K.S.A. 1995 Supp. 79-5204 provides in relevant part:
“(a) No dealer may possess any marijuana, domestic marijuana plant or controlled substance upon which a tax is imposed pursuant to K.S.A. 79-5202, and amendments thereto, unless the tax has been paid as evidenced by an official stamp or other indicia.
“(c) When a dealer purchases, acquires, transports, or imports into this state marijuana, domestic marijuana plants or controlled substances on which a tax is imposed by K.S.A. 79-5202, and amendments thereto, and if the indicia evidencing the payment of the tax have not already been affixed, the dealer shall have them permanently affixed on the marijuana, domestic marijuana plant or controlled substance immediately after receiving the substance. Each stamp or other official indicia may be used only once.
“(d) Taxes imposed upon marijuana, domestic marijuana plants or controlled substances by this act are due and payable immediately upon acquisition or possession in this state by a dealer. Interest on tax liabilities shall accrue at the rate prescribed by subsection (a) ofKS.A. 79-2968, and amendments thereto, from the date the tax was due until paid.” (Emphasis added.)
K.S.A. 79-5208, at the time pertinent to this appeal, read as follows:
“Any dealer violating this act is subject to a penalty of 100% of the tax in addition to the tax imposed by [K.S.A. 79-5202], In addition to the tax penalty imposed, a dealer distributing or possessing marijuana or controlled substances without affixing the appropriate stamps, labels or other indicia is guilty of a crime and, upon conviction, may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.” (Emphasis added.)
Both of the statutes quoted above either impose the tax or criminal penalties on “dealers” who are in “possession” of marijuana or other controlled substances. Both the KDR and the BOTA decisions deal with and are based on what the term “possession” means in the tax context.
K.S.A. 1995 Supp. 79-5204(d) provides that the tax is due immediately upon “acquisition or possession.” K.S.A. 79-5208 imposes penalties on “dealers” who are “distributing or possessing” marijuana or other controlled substances. Clearly, 79-5204 deals with imposition of the civil tax and penalties, whereas 79-5208 provides for criminal penalties and fines for violations of the Act. Despite their differences in focus, both statutes are part and parcel of the Act.
“ ‘[T]he legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.’ In re Marriage of Ross, 245 Kan. 591, 594, 783 P.2d 331 (1989).” (Emphasis added.) Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992).
In order to construe the Act in a harmonious and consistent manner, we conclude that the term “possession” must mean the same thing throughout the Act.
The Director specifically did not address the definition or meaning of the term “acquire” as used in 79-5204(c) and (d). As might be expected, the BOTA decision also omitted consideration of the term “acquire.” We believe that as that term is used in the Act, it has the same general meaning as does the term “possession.” If, in fact, a taxpayer does not have the requisite possession to trigger the tax, he or she also has not “acquired” the substance within the meaning of the Act.
The KDR held that, in this case, the taxpayer was not in actual possession of the marijuana. It found, however, that he was in constructive possession of the marijuana placed in his car by Detective Spencer. The KDR hearing officer then concluded that constructive possession of the marijuana was sufficient to impose liability for the tax.
The BOTA agreed that the taxpayer was in constructive possession of the marijuana but concluded that was not sufficient possession to incur liability under the Act. The BOTA held as follows:
“16. To find that the tax is due and owing in this situation would place a tax on the marijuana before the Taxpayer has the opportunity to perform his duties. It would be possible for anyone to place marijuana in a location nominally under a Taxpayer’s control, and then make the Taxpayer immediately hable for the taxes.
“17. “Where there is reasonable doubt as to the meaning of a taxing act, it will be construed most favorably to the taxpayer.’ Fleming Company v. McDonald, 212 Kan. 11, Syl. ¶ 1, 509 P.2d 1162 (1973); Equitable Life Assurance Society v. Hobbs, 154 Kan. 1, Syl. ¶ 1, 114 P.2d 871 (1941). There is a question about the amount of possession necessary. Constructive possession is not sufficient to trigger an application of the marijuana tax. The operation required in the marijuana tax stamp act is the affixing of the tax stamps on the marijuana. K.S.A. § 79-5204 (1991 Supp.). In this case the Taxpayer did not have the opportunity to affix the stamps. The Taxpayer must have possession of the marijuana sufficient enough to affix the stamps. Constructive possession, a legal fiction, simply does not apply; actual possession is needed. Otherwise, the Taxpayer would be liable whether or not he had the stamps in his pocket. The police action in arresting the Taxpaijer may be sufficient to sustain some type of criminal charge, but it is premature to sustain the marijuana tax.
“18. The presumption of the correctness of the Department’s assessment is overcome because the facts show that the Taxpayer was never in actual possession of the marijuana.” (Emphasis added.)
We agree with the BOTA. The question does not turn on whether there was actual or constructive possession. In general, one can conclude that in virtually all instances actual possession of marijuana would result in tax liability. On the other hand, most of the time, constructive possession alone would not be sufficient to trigger liability. We are not, however, willing to say that in no conceivable instance would constructive possession result in tax liability. Under the rule we adopt, constructive possession would rarely be sufficient to trigger the tax, but rarely does not mean never. It is possible that on some rare occasions constructive possession, along with the other facts shown, may be sufficient, and this must be decided on a case-by-case basis.
We prefer to base our decision on something more substantial than the variety of definitions that we could quote defining actual possession and/or constructive possession. The BOTA concluded that “[i]n this case, the Taxpayer did not have the opportunity to affix the stamps. The Taxpayer must have possession of the marijuana sufficient enough to affix the stamps .” (Emphasis added.) We conclude that the BOTA is correct in its reasoning.
K.S.A. 79-5208 imposed criminal liability on “a dealer distributing or possessing marijuana or controlled substances without affixing the appropriate stamps, labels or other indicia.” (Emphasis added.) The penalty for being in possession of marijuana without the stamps affixed, at the time of the taxpayer’s arrest, was imprisonment for not more than 5 years, a fine of not more than $10,000, or both. In 1994, the statute was amended, and, presently, a dealer in possession of marijuana without the stamps affixed is guilty of a severity level 10 felony. See K.S.A. 1995 Supp. 79-5208.
Despite the KDR’s arguments to the contrary, the most severe penalties under the Act are for possession without the stamps affixed. As we read the statute, a dealer who had purchased the stamps and had them in his back pocket would still be criminally liable if, when arrested, he did not have the stamps affixed.
The penalties imposed by K.S.A. 79-5208 are not for being in simple possession of the marijuana; they are for being in possession of marijuana without the stamps affixed. Under those circumstances, it is clear that in order to be guilty of that crime, one must have had sufficient possession so that he or she had an opportunity to affix the stamps. We doubt that the imposition of criminal lia bility would be constitutional if it were based on conduct that gave the violator no opportunity to comply with the law.
We also conclude that the term “possession” cannot mean one thing as used in 79-5208 and another as used in 79-5204. The type of possession sufficient to incur tax liability is the same type of possession sufficient to incur criminal liability. In both those instances, the possession must have been sufficient to allow the individual to have affixed the stamps.
We hold that in order to incur liability for the tax under 79-5204, the taxpayer must have had possession of the marijuana sufficient enough to affix the stamps. In this case, the taxpayer did not have the opportunity to affix the stamps. He was out of the car when the marijuana was placed in the back seat and was arrested before he could get back into his car or even get close to the marijuana. He never had a chance to be where the marijuana was; he never had a chance to touch the marijuana, to test it, or to hide it. If the stamps had been in his back pocket, he never would have had a chance to put them on the marijuana. We agree with the BOTA that the taxpayer was never in sufficient possession of the marijuana to incur tax liability under the Act.
The KDR. argues that the taxpayer “acquired” the marijuana even if he did not possess it. This issue was not considered by the BOTA. We are asked to remand this case for a consideration of whether the taxpayer “acquired” the marijuana. We decline to do so.
It is our judgment, and that of the BOTA, that tax liability is not incurred unless and until a taxpayer has had possession sufficient to give him or her an opportunity to comply with the law and affix the stamps. It makes little difference at this juncture if we are talking about “acquiring” the marijuana or coming into “possession” of it. In either instance, the taxpayer must have had the opportunity to affix the stamps. Consequently, a taxpayer has not acquired marijuana within the meaning of the Act unless it could be shown that he had sufficient possession of the substance to affix the tax stamps.
Our opinion deals only with civil tax liability under the Act. It should not be construed as attempting to define what elements are necessary to convict a defendant for criminal possession of marijuana. Those definitions are developed in criminal actions.
We have no problem with the fact that in this case, for instance, the taxpayer was guilty of criminal possession of marijuana and yet did not have sufficient possession of that marijuana to incur liability under the Act. There is no inconsistency of logic in this case; there is simply a fundamental difference between a criminal prosecution and a civil action to recover taxes. That fundamental difference is demonstrated in this opinion.
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Marquardt, J.:
Gary Allsup appeals from the decision of the. district court which granted summary judgment in favor of Mount Carmel Medical Center (Mount Carmel). Allsup contends that he was discharged in violation of an implied contract of employment.
Prior to March 4, 1992, Allsup was employed by Mount Carmel as vice-president of Human Resources. The parties agree that “[Allsup] was an employee entitled to the benefit of [Mount Carmel’s] policies regarding the requirement of just cause for discipline, progressive discipline and grievance procedure.” Neither party cites any language in Mount Carmel’s policies that would give rise to an implied contract; however, for the purposes of this appeal, it is considered fact that an implied contract existed because both parties agree.
Mount Carmel states that “Mount Carmel’s President terminated [Allsup’s] employment for various job related reasons.” The facts underlying Allsup’s termination are not at issue in this appeal. Both parties agree that Allsup’s last day of employment with Mount Carmel was March 4, 1992.
Mount Carmel filed a motion for summary judgment which stated: “[P]laintiff is estopped from asserting a claim for wrongful termination because the implied contract on which he relies provided for the filing of a grievance to Defendant’s Administrator (CEO) as the final step in any review of employment termination.”
The memorandum in support of the summary judgment motion stated in part:
“Plaintiff’s action is one for wrongful discharge under an alleged implied employment contract based on certain alleged policies of [Mount Carmel], Mount Carmel for the purpose of its Motion for Summary Judgment assumes arguendo the existence of such an implied employment contract based on its alleged policies.
“... [F]or the purpose of the instant Motion for Summary Judgment, Defendant Mount Carmel assumes arguendo that the following of Plaintiff’s contentions are uncontroverted.
“1. The basis for Plaintiff’s claim of wrongful termination is Defendant’s (alleged) policies regarding the requirement of just cause for termination of employment, progressive discipline dependent upon the infraction committed, and the hospital’s grievance procedure. ...
“2. Plaintiff was an employee entitled to the benefit of Defendant’s policies regarding the requirement of just cause for discipline, progressive discipline and grievance procedure.”
Both parties agreed to paragraphs 1 and 2 as uncontroverted facts.
Mount Carmel also had a policy which provided a grievance procedure for an aggrieved employee. The policy provided in part: “It is the policy of Mt. Carmel Medical Center to provide a means whereby an employee may present a complaint regarding conditions of employment, or interpretation, and/or application of policies in an orderly manner without fear of recrimination.”
The grievance procedure provided a four-step process. The first step was to bring the problem to the attention of the employee’s immediate supervisor. If a satisfactory solution was not reached, then the second step required in part that “[t]he employee . . . prepare the complaint, including relief requested, in written form and present the written grievance to the Department Manager.” The third step was similar to the second in that a written complaint was to be presented to the “Division Director.” The fourth step provided:
“If a solution is not reached by this point, the Director of Personnel will review the case with the Administrator and arrange such meetings as necessaiy to assure that all facts in the case are known. The decision of the Administrator is final and will be transmitted to concerned parties in written form by the Director of Personnel.” (Emphasis added.)
Allsup admits that he did not file a written grievance under the procedure provided, and the district court noted that “plaintiff does not contend that there were any obligations owed to him based upon any oral statements.” Therefore, all claims of either party are based on the written policies of Mount Carmel. However, the only policy that is in question in this appeal is the grievance procedure and whether it is discretionary on the part of the employee.
In granting Mount CarmeFs motion for summary judgment, the district court concluded that “[ajssuming that an implied contract was created by the documents plaintiff relies on, the terms thereof are that plaintiff may file a grievance and that the Administrator has the final say.” Thus, the district court agreed with Mount Carmel that Allsup’s “sole avenue for redress of his claim of unjust termination was through the grievance procedure contained within the policies upon which plaintiff relies for his implied contract of employment.”
Allsup argues that the language of the grievance procedure indicates that it was optional. Allsup reasons that if he could only be terminated for just cause and the grievance procedure was optional, he has a valid cause of action for breach of an implied contract of employment.
A. Standard of Review
Summary judgment is appropriate when the documents on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 60-256(c); Dickens v. Snodgrass, Dunlap & Co., 255 Kan. 164, 166, 872 P.2d 252 (1994).
The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party opposing the motion. Kastner v. Blue Cross 6- Blue Shield of Kansas, Inc., 21 Kan. App. 2d 16, 21-22, 894 P.2d 909, rev. denied 257 Kan. 1092 (1995).
Similarly, “[i]n reviewing a summary judgment, an appellate court must read the record in the light most favorable to the party who opposed the motion.” Morriss v. Coleman Co., 241 Kan. 501, 502, 738 P.2d 841 (1987). Thus, this court must give Allsup the benefit of all reasonable inferences arising from the record.
B. Terms of the Implied Contract
Mount Carmel, for the purpose of its motion for summary judgment, assumed the existence of an implied employment contract based on its policies. It is uncontroverted that “[Allsup] was an employee entitled to the benefit of [Mount CarmeFs] policies regarding the requirement of just cause for discipline, progressive discipline and grievance procedure.” Except for the grievance procedure, neither party cites to any policies or to the record to support the allegation that Allsup could only be terminated for cause.
For the purposes of the summary judgment motion, an implied employment contract existed between Mount Carmel and AJlsup based on Mount Carmel’s policies. See Morriss, 241 Kan. at 502.
C. Implied Contract
“Kansas has long adhered to the doctrine of employment-at-will.” Ortega v. IBP, Inc., 255 Kan. 513, 516, 874 P.2d 1188 (1994). In Johnson v. National Beef Packing Co., 220 Kan. 52, 54, 551 P.2d 779 (1976), the court stated the oft-quoted rule:
“[I]n the absence of a contract, express or implied, between an employee and [an] employer covering the duration of employment, the employment is terminable at the will of either party, and the employee states no cause of action for breach of contract by alleging that he has been discharged.”
Thus, in Kansas, an employer may discharge an “at-will employee” for good cause, for no cause, or even for a wrong cause, without incurring liability to the employee for wrongful discharge. Morriss, 241 Kan. at 508; Kastner, 21 Kan. App. 2d at 22. Because of the potential for harsh results arising from the employment-at-will doctrine, judicially created exceptions have eroded the doctrine. Morriss, 241 Kan. at 509; see Ortega, 255 Kan. at 516.
Kansas recognizes an exception to the employment-at-will doctrine where there has been an implied agreement to the contrary. See Kastner, 21 Kan. App. 2d at 22-23. See generally Worth and Landis, Fire at WillP The Status of Judicially Created Exceptions to Employment-at-Will in Kansas, 64 J.K.B.A. 22 (Feb./Mar. 1995). The implied contract theory “recognizes an implied obligation on the employer to not terminate an employee arbitrarily where a policy or program of the employer, either express or implied, restricts the employer’s right of termination at will.” Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 135, 815 P.2d 72 (1991). Thus, the employer is barred “from violating its own policies in discharging an employee.” Morriss, 241 Kan. at 509.
“ ‘A contract implied in fact arises from facts and circumstances showing mutual intent to contract.’ ” Allegri v. Providence-St. Mar garet Health Center, 9 Kan. App. 2d 659, 663, 684 P.2d 1031 (1984) (quoting Mai v. Youtsey, 231 Kan. 419, 422, 646 P.2d 475 [1982]). In Morriss, 241 Kan. 501, Syl. ¶ 1, the court adopted the factors to consider in evaluating an implied contract as stated in Allegri, 9 Kan. App. 2d 659, Syl. ¶ 5. However, Mount Carmel and Allsup agree that tire implied contract of employment is controlled solely by the policies of Mount Carmel. References are made to a policy requiring just cause for termination; however, the policy is not included in the record and, therefore, cannot be considered by this court.
Mount Carmel and Allsup admitted that an implied contract existed based solely on Mount Carmel’s policies.
D. Employee Procedure for Recoúrse
Allsup points to the language in the grievance procedure in support of his assertion that it was not his exclusive remedy. Specifically, Allsup notes that the grievance procedure provided that “an employee may present a complaint.” The grievance procedure is the only document in the record cited to by either party that deals with an employee’s recourse if aggrieved by Mount Carmel.
Mount Carmel argues that its “voluntary restriction of its common law rights was limited by the requirement that alleged violations of the rights granted be subject to only an internal review.” As noted above, the district court essentially agreed with Mount Carmel.
In Plummer v. Humana of Kansas, Inc., 715 F. Supp. 302, 304 (D. Kan. 1988), the court stated:
“Even if an employment contract did exist, Plummer would certainly be bound by that contract’s terms. The Handbook provided that if an employee felt Humana had violated its own policies, the employee’s sole recourse was to use the grievance procedure. Plummer admits that he failed to use Humana’s grievance ¡procedure after Humana terminated him without following progressive disciplinary procedures. . . . Therefore, even if a contract did exist, summary judgment is appropriate because plaintiff failed to follow the company grievance procedure as required by the contract.”
Allsup attempts to distinguish Plummer on the basis that the language of Mount Carmel’s grievance procedure was permissive, while the language of the policy in Plummer was mandatory. The Mount Carmel grievance procedure, however, provided that “[t]he decision of the Administrator is final.” As such, the terms of the grievance procedure limited the employee’s recourse to the procedure provided. Filing a grievance was optional, but under the terms of the policy, it was the only option. The issue is whether this limitation in the grievance policy truly limits the employee’s recourse.
The rule that an employee’s recourse is limited to the procedures provided in the documents giving rise to the implied contract is most often stated in cases where the contract did not make the employee terminable only for cause. Stated otherwise, the employee was still an employee-at-will with merely certain procedural protections. See Francis v. Memorial General Hosp., 104 N.M. 698, 699, 726 P.2d 852 (1986) (citing Forrester v. Parker, 93 N.M. 781, 606 P.2d 191 [1980]). For example, the Plummer court found that “unlike Morriss, there is no evidence that management indicated dismissals would only be ‘for cause.’ ” 715 F. Supp. at 304; see Suburban Hospital, Inc. v. Dwiggins, 324 Md. 294, 305, 596 A.2d 1069 (1991).
A rule similar to that stated in Plummer and Dwiggins has been stated in the public employee context where the employee does not have a property interest in continued employment sufficient to invoke due process rights. See Carnes v. Parker, 922 F.2d 1506, 1511 (10th Cir. 1991) (“Although procedural protections themselves are not sufficient to create a property interest in continued employment, they can sustain an entitlement to the procedures themselves.”). Thus, Carnes describes a public employee-at-will with entitlement to certain procedures.
The instant action should be distinguished from public employee cases that implicate due process rights. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985). Where an employee is entitled to due process, the procedure provided does not limit the substantive right. Loudermill, 470 U.S. at 541. A public employee who may only be discharged for cause possesses a due process right to notice and a hearing. See Gorham v. City of Kansas City, 225 Kan. 369, 373, 590 P.2d 1051 (1979).
Allsup does not allege the necessary state action to give rise to due process rights. See Wertz v. Southern Cloud Unified School District, 218 Kan. 25, 29, 542 P.2d 339 (1975). Thus, the cases involving due process rights arising from a property interest in continued employment do not directly apply. See Kosik v. Cloud County Community College, 250 Kan. 507, 512-13, 827 P.2d 59, cert. denied 506 U.S. 867 (1992); Gorham, 225 Kan. 369, Syl. ¶ 1.
For purposes of this action, Allsup was a private employee with an implied contract of employment. Cases arising in this context appear to limit the employee to the recourse provided in the documents giving rise to the implied contract.
In Pagdilao v. Maui Intercontinental Hotel, 703 F. Supp. 863 (D. Hawaii 1988), a hotel employee became very intoxicated and obnoxious at several employee picnics. During what turned out to be the final such incident, Pagdilao “stuck out the middle finger from each of his hands and alternately pumped his hands up and down in the air while yelling profanities at [the director of security].” 703 F. Supp. at 864. Pagdilao continued in this manner while walking backwards up a hill. The director of security prepared a report recommending that the hotel terminate Pagdilao’s employment, and the hotel did so.
Hawaii law recognizes the implied contract exception to the doctrine of employment-at-will. 703 F. Supp. at 866. Thus, “the 'unfettered right of employers to discharge employees “can be contractually modified and, thus, qualified by statements contained in employee policy handbooks issued by employers to their employees.” ’ [Citation omitted.]” 703 F. Supp. at 866.
Pagdilao’s implied contract claim was based on an employee handbook. The handbook contained both “House Rules and Regulations,” which described certain employee conduct as grounds for discipline or termination and a “Kokua Procedure,” which provided guidelines for resolving employment disputes. 703 F. Supp. at 867. The Pagdilao court stated:
“Plaintiff argues that the Kokua Procedure when read in conjunction with the House Rules established an implied contract between defendant arid its employees that disciplinary action or termination would result for specified violations of House Rules or ‘for cause,’ only after the proper procedures under the Kokua Procedure had been followed. Even assuming that an implied-in-fact contract based on the Kokua Procedure existed, it is undisputed that the Kokua Procedure was satisfied in the present case. The Kokua Procedure provides for the review of employment decisions by the supervisor, department head, resident manager, and general manager or his designee. . . . Plaintiff admits that he was given the opportunity and did exhaust the Kokua Procedure.
“The court thus finds that plaintiff was given all that was promised to him in the Employee Handbook. While it might be debatable whether the ‘House Rules’ apply at company social functions, the court finds that termination is not limited to cases in which the employee breaks the House Rules, The only promise to employees is that they will be permitted to pursue the Kokua Procedure. Plaintiff admits that he was afforded this opportunity. Thus, there is no issue of fact with respect to plaintiff s claim for breach of implied contract, and accordingly, defendant’s motion for summary judgment on that claim is GRANTED.” (Emphasis added.) 703 F. Supp. at 867.
Thus, the Pagdilao court evaluated a private employee who was arguably terminable only for cause and concluded fhat the employee’s recourse was limited to the procedure provided in the employee handbook. 703 F. Supp. at 866-67.
In 2 Rothstein, Employment Law § 9.8, p. 265 (1994), fhe authors state: “Many public sector employees are entitled to procedural due process before they may be fired, [citation omitted] but private sector employees enjoy only the procedural rights provided for in their employment contracts.”
Similarly, in Meleen v. Hazelden Foundation, 740 F. Supp. 687, 692 (D. Minn. 1990), aff’d 928 F.2d 795 (8th Cir. 1991), the court stated:
“Plaintiff got all fhe procedure she was due under fhe employment contract. She, perhaps understandably, would like something more. But, this was a private contract; no right to constitutional due process or proof beyond a reasonable doubt existed. Plaintiff’s private expectations and due process concepts are not part of the employment contract.”
The terms of Allsup’s implied contract are contained only in Mount Carmel’s policies. Thus, all Mount Carmel promised was that employees would be allowed to pursue the grievance procedure. Allsup cannot avail himself of procedures and benefits not contained in his implied contract. In accepting the benefits of the implied contract, Allsup must accept the obligations as well. Allsup chose to claim he had an implied contract but now argues that he is not bound by the grievance procedure.
Without this implied contract, AJlsup would be an employee-at-will with no recourse. With an implied contract, the only terms that apply are those written in the grievance procedure. By Allsup availing himself of the benefits (contending he has an implied contract by virtue of Mount Carmel’s policies), Allsup must also accept the responsibilities of the policies — the grievance procedure.
In the alternative, Allsup argues that if his recourse was limited to, the. grievance procedure specified in the company handbook, then “it is an invalid attempt at a waiver, of [his] right to due process and should not be enforced.”
Mount Carmel argues that Allsup is improperly asserting constitutional issues “that were neither presented nor preserved before the District Court.” It is true that “ ‘[w]here constitutional grounds for reversal are asserted for the first time oh appeal, they are not properly before the appellate court for. review.’ ” Peterson v. Garvey Elevators, Inc., 252 Kan. 976, 980, 850 P.2d 893 (1993).
.Allsup responds that because Mount Carmel and the district court relied on Gorham, a case that discusses due process rights for public employees, Allsup is entitled to distinguish and address the constitutional issues discussed in Gorham See 225 Kan. at 373-74.
Allsup is certainly entitled to distinguish authority relied on in an unfavorable district court decision and by opposing counsel. Allsup, however, relies on the due process grounds as an alternative to the implied contract theory. Allsup did not make a due process argument to the district court. Thus, Allsup improperly raises the due process argument for the first time on appeal. In re Appeal of City of Lenexa, 232 Kan. 568, 587, 657 P.2d 47 (1983).
Allsup’s alternative due process argument is not properly before this court.
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Elliott, J.:
In this tragic medical negligence case, the jury returned a verdict of $457,000 in favor of plaintiff Michelle Shirley. Defendant Dr. U. Duane Smith appeals, claiming the trial court erred in admitting evidence and in allowing plaintiff to claim economic damages for her loss of time spent in catheterizing herself. We reverse and remand for a new trial.
Plaintiff was referred to defendant for a bone marrow aspiration. Plaintiff contends defendant negligently punctured her spinal canal, resulting in permanent damage to her bowel and bladder. Plaintiff now is unable to completely empty her bladder and must catheterize herself about every 4 hours, spending a total of about an hour per day in this process. Apparently, plaintiff will have to self-catheterize for the rest of her life.
As part of the verdict, the jury awarded plaintiff $135,000 for future economic loss (including loss of time).
Plaintiff filed a cross-appeal, but has not briefed any issue as a cross-appellant. We deem the cross-appeal abandoned.
Defendant first argues the trial court abused its discretion in admitting evidence of proceedings before the Board of Healing Arts (BOHA). BOHA suspended defendant’s license to practice for 60 days and prohibited him from performing bone marrow aspirations for 1 year. BOHA also publicly censured defendant for providing false information in applying for privileges at two hospitals.
At trial, the court admitted this evidence, ruling that BOHA believed the public was entitled to know of the procedures. The BOHA orders contain conclusions regarding the ultimate fact issues before the jury. Defendant alleges their prejudicial effect far outweighed any probative value. See K.S.A. 60-445.
No statute directly addresses whether evidence of BOHA proceedings is admissible, but two statutes must be mentioned. K.S.A. 65-4904(c) provides that the decision of a medical malpractice screening panel is admissible in a subsequent civil suit. While the legislature expressly provided for the admissibility of screening panel reports, it has not provided for BOHA reports.
The second statute needing consideration is K.S.A. 65-4915(b), which provides that reports and findings of peer review committees are not discoverable and not admissible in judicial proceedings. While K.S.A. 65-4915 does not apply to the present case, it does show that the legislature knows how to make evidence regarding medical malpractice inadmissible as well as admissible.
With respect to the present case, the legislature simply did not provide one way or another for the admissibility of BOHA findings in later civil suits. Accordingly, we are left with the balancing test provided for in K.S.A. 60-445. See Powers v. Kansas Power & Light Co., 234 Kan. 89, 101, 671 P.2d 491 (1983).
Here, BOHA’s public censure of defendant for providing false information in his applications for staff privileges at numerous hospitals had nothing to do with defendant’s care of plaintiff. At least with respect to the BOHA censures having nothing to do with the hospital in question and nothing to do with the issue of defendant’s care of plaintiff, we cannot rule the admission was harmless error. Plaintiff’s case was strong, but not overwhelming. Defendant did present the testimony of two doctors who testified he could not have punctured plaintiff’s spinal column. Accordingly, we must reverse and remand for a new trial. At. the new trial, whether the BOHA findings with respect to defendant’s conduct in plaintiff’s case and his prohibition from performing further bone marrow aspirations are admissible is left'to the trial court’s discretion under K.S.A. 60-455.
Defendant also argues the trial court erred in allowing the jury to award plaintiff economic damages for her loss of time spent self-catheterizing. Defendant contends “loss of time” in PIK Civ. 2d 9.01 and PIK Civ. 2d 9.012 (1995 Supp.) refers to an impairment of earning capacity.
Here, plaintiff testified she can self-catheterize during her “off” time or “leisure” time — before work, during lunch, and after work. Defendant argues, therefore, that the time lost while self-catheterizing is a loss of enjoyment of life or an inconvenience, which is not economic damage. We agree.
Loss of time prior to trial and decreased earning capacity after trial are both recoverable as “loss of time.” See Dyer v. Keith, 136 Kan. 216, 219, 14 P.2d 644 (1932). Loss of time is tied to a plaintiff’s earning capacity. 22 Am. Jur. 2d, Damages §§ 151, 153.
In Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 352, 789 P.2d 541 (1990), our Supreme Court explained the difference between economic and noneconomic damages:
“Economic damages include the cost of medical care, past and future, and related benefits, i.e., lost wages, loss of earning capacity, and other such losses. Non-economic losses include claims for pain and suffering, mental anguish, injury and disfigurement not affecting earning capacity, and losses which cannot be easily expressed in dollars and cents.” (Emphasis added.)
Since plaintiff testified she could catheterize herself during “off” time and did not testify that task interfered with her earning capacity in any way, her “loss of time” cannot be claimed as economic damages. Rather, it properly falls under the noneconomic category that includes loss of enjoyment of fife, pain and suffering, and disability. See Leiker v. Gafford, 245 Kan. 325, 340, 778 P.2d 823 (1989) (loss of enjoyment of life is a component of pain and suffering but not a separate category of nonpecuniary damages).
Plaintiff’s claim for loss of time spent self-catheterizing must be included in her claim for noneconomic damages; it cannot be recovered as economic damages or loss.
Reversed and rémanded for a new trial. | [
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|
Wahl, J.:
The State brings this interlocutory appeal from the district court’s order suppressing evidence from a blood alcohol test based on collateral estoppel.
Tom Dewey was arrested on suspicion of driving under the influence on May 28, 1995. He consented to a blood alcohol test. The Kansas Department of Revenue (KDR) held an administrative hearing on August 18,1995, to determine whether Dewey’s driver’s license should be suspended for test failure. The hearing officer dismissed the case because “Atwood Lab did test [and] there is no proof that they are certified to do so.”
Before criminal proceedings at the district court level, Dewey brought a motion in limine to suppress results of the blood alcohol test. The court granted Dewey’s motion based on collateral estoppel. The State brings this interlocutory appeal.
The basis of Dewey’s arguments is his contention that this court’s decision in City of Manhattan v. Huncovsky, 22 Kan. App. 2d 189, 913 P.2d 227, rev. denied 260 Kan. 992 (1996), was wrong. The State simply argues that Huncovsky controls. Dewey’s arguments raise questions of law, and this court’s review is unlimited. See Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
Dewey attempts to distinguish the facts in the present case from those in Huncovsky and to show the error in this court’s reasoning by raising essentially three arguments: (1) The issue being litigated in Huncovsky was different from the issue in this case, (2) there are not differences in quality or extensiveness in the procedures between the two courts, and (3) case law supports a holding that collateral estoppel should apply to administrative proceedings.
In Huncovsky, a municipal court convicted the defendant of driving under the influence, and the defendant appealed to the district court. After the municipal court proceedings, but before the district court trial, KDR held an administrative driver’s license suspension proceeding. The hearing officer concluded interferants created questionable Intoxilyzer 5000 test results and dismissed the proceeding. When the district court criminal proceedings started, the defendant argued the district court was collaterally estopped from reconsidering the validity of the breath test results. The district court agreed.
On an interlocutory appeal, this court ruled that under the facts of the case, the elements of collateral estoppel were met. However, this court found the difference in the quality and extensiveness of the proceedings between the administrative driver’s license suspension hearings and criminal proceedings in district court warranted an excéption. 22 Kan. App. 2d at 193-94. This court held that “the doctrine of collateral estoppel should not apply to an administrative driver’s license suspension hearing in order to bar relitigation of issues in a subsequent criminal proceeding.” 22 Kan. App. 2d at 196.
First, Dewey would distinguish his case from Huncovsky because the issues litigated were different. Dewey argues this case concerns proper foundation, a question of law, while Huncovsky deals with a question of fact, whether interferants contaminated the breath test. Dewey contorts the issues. Both cases deal with the admissibility of tests — a breath test and a blood alcohol test. The issues are the same. Whether an adequate foundation was laid for admissibility is a question of fact for the trial judge. See State v. Rohr, 19 Kan. App. 2d 869, 870, 878 P.2d 221 (1994). In both cases, the issue on appeal is whether admissibility decisions at an administrative driver’s license hearing have preclusive effect in a subsequent criminal proceeding.
Second, Dewey raises several points to prove the quality and extensiveness of the proceedings at the administrative driver’s license hearing and district court criminal proceedings are the same. He argues that when both courts admit evidence, the procedure concerning admissibility is the same. He then claims the only difference is that the defendant has the burden of proof to keep the evidence out at the administrative hearing whereas the State has the burden of proof to bring the evidence in at the criminal trial. Dewey’s own argument defeats a showing of sameness of the quality of proceedings. The required burden of proof creates a significant difference in the proceedings.
Dewey contends the court in Huncovsky erred in reasoning that administrative proceedings were geared toward a swift resolution. He claims the court’s conclusion that the administrative hearing must be held within 30 days of request was error and that KDR may “arbitrarily” continue the hearings. Further delays can occur because determinations may be appealed. The court in Huncovsky did not err. K.S.A. 1995 Supp. 8-1002(k) provides that if a request for a hearing is made, the hearing “shall” be held within 30 days. If unable to hold the hearing within that time frame, KDR has discretion to postpone the date of the hearing. Dewey is speculating as to whether this frequently occurs, and he certainly has no basis for stating it is done “arbitrarily.” Regarding delays caused by appeals, Dewey ignores a concern expressed in Huncovsky. There, the court was concerned that giving conclusive effect to the administrative hearing would undermine any quick resolution of these cases by creating incentives for the State to fully litigate these issues. 22 Kan. App. 2d at 195.
Dewey further argues that the court in Huncovsky erred when it reasoned that administrative driver’s license proceedings were more informal and less stringent than criminal proceedings in district court. In support, he claims rules of evidence are strictly enforced. It is apparent that KDR strictly abides by rules of evidence when admitting breath and blood alcohol test results. Dewey focuses on but one aspect of the administrative proceedings. The court in Huncovsky more broadly compared the two courts when it stated:
“The administrative proceeding is unrelated to any criminal action which may be filed and, in any event, the criminal prosecutor does not receive notice of the administrative hearing. The only persons required to be present by statute are the driver and the hearing officer and, of course, the arresting officer must be subpoenaed. Affidavits can be used in place of five testimony. The hearing is informal, and the procedures are substantially less stringent than those utilized in an adversarial criminal proceeding.” 22 Kan. App. 2d at 195.
Dewey does not show that the administrative proceedings are of a like quality and extensiveness as a district court criminal proceeding. By their purpose and, thus, their nature, administrative hearings are more concerned with expedition than with intensive consideration.
Third, Dewey claims case law supports a holding that collateral estoppel applies to issues decided at an administrative driver’s license hearing. Dewey cites Zurawski v. Kansas Dept. of Revenue, 18 Kan. App. 2d 325, 851 P.2d 1385, rev. denied 253 Kan. 864 (1993). In Zurawski, KDR appealed the decision of the district court reversing the suspension of a driver’s license. The district court considered two letters from Zurawski’s doctor which were admitted at the administrative hearing. On appeal, KDR argued the letters were inappropriately admitted into evidence. This court held that since KDR did not object at the administrative hearing, the issue was not preserved on appeal. 18 Kan. App. 2d at 330. Dewey here argues KDR was bound on appeal and, therefore, collateral estoppel should bind the State in this case. Dewey ignores the reasoning in Huncovsky in allowing an exception to the application of collateral estoppel — that the administrative proceeding is unrelated to the criminal action and that the quality and extensiveness of the proceedings differ. In Zurawski, the administrative action was the same proceeding on appeal. The holding in Huncovsky does not apply to the circumstances in Zurawski.
Dewey also refers to Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843, 863 P.2d 364 (1993). In Dickerson, the court applied collateral estoppel to a plea bargain in criminal proceedings to later efforts by KDR to impose a drug tax. 253 Kan. at 850-52. Dewey argues that if KDR is bound by a question of law, then all parties should be bound. Dewey ignores the fact that a more extensive criminal proceeding would have binding effect on a less extensive administrative proceeding but not the other way around. Any generalizations from Dickerson would also be difficult, since the court applied collateral estoppel to the “unique facts of this case.” 253 Kan. 843, Syl. ¶ 1.
Finally, Dewey claims that the issue of proper foundation was fully adjudicated and was not appealed, and, therefore, the doctrine of collateral estoppel bars further litigation. Dewey misstates the circumstances. The hearing officer never concluded that Atwood Lab was not certified to draw blood, but merely found no proof the lab was certified. From the minimal record on appeal, it appears more likely the issue was not fully litigated. These facts support the conclusion in Huncovsky. The quality and extensiveness of the proceeding at Dewey’s administrative hearing were such that there can be no binding effect on a criminal proceeding in the district court.
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Pierron, J.:
Robert G. Cemech appeals his sentence for involuntary manslaughter, claiming that the district court initially pronounced a sentence of probation and later imposed a prison sentence. We affirm.
The facts are as follows. Cemech drove a vehicle left of center and hit another vehicle, killing the other driver. Cemech had an open container of alcohol in his vehicle and a blood alcohol concentration of .23. He pled no contest to involuntary manslaughter and driving under the influence of alcohol (DUI).
The district court pronounced the following sentence for Cernech’s involuntary manslaughter conviction:
“[T]he Court finds that you should be sentenced to the custody of the Secretary of Corrections on the felony charge of involuntary manslaughter to a term of 32 months, which is [a] mid range sentence. This is a border box offensef] [U]nder the circumstances the Court finds that of that sentence before probation can be considered that the defendant should serve a period of thirty days in the jail of Jefferson County, Kansas, and then be reviewed for probation.”
The district court also imposed a 90-day sentence for the DUI conviction but granted parole on part of that sentence and ordered Cemech to serve a 5-day prison term to ran consecutive to the preliminary 30-day term for the involuntary manslaughter convic tion, after which the district court would consider granting probation.
The court explained that alcohol treatment and abstention from alcohol would be conditions of Cemech’s probation. The court concluded the sentencing hearing as follows:
“He is remanded to the custody of the sheriff to commence serving the sentence, and it will be a total of thirty five days. If [the defendant’s attorney] can work out a work release I’ll consider it,.. . but that may not be practical, I don’t know. But he is to serve the thirty five days. [A probation officer] will be in touch with you regarding the probation that’s available after that period of time, but a condition of that probation like I said, Mr. Cemech, is that you have to complete this after care program, and you have to forever abstain from drinking alcohol again, because you don’t want this to happen again, I’m sure.”
The district court later considered granting Cemech probation in lieu of ordering him to serve his presumptive sentence. Defense counsel noted that he had arranged for an alcohol treatment program for Cemech and asked the court to grant probation and to order Cemech to participate in the treatment program in lieu of serving the remainder of the presumptive prison sentence.
Before addressing the probation issue, the district court made the following statement concerning its prior pronouncement of sentence:
“After I pronounced sentence, it was the court’s understanding that this matter would be reviewed for probation but I lapsed off into a — essentially obiter dictum, which would be attendant normally to a presumptive probation case and ... I didn’t intend to do that[.] I certainly regret any confusion or false hope or dismay that I caused. [I was dealing] specifically with a border box dialogue after I pronounced sentence.”
The district court then stated it had received a report from the alcohol treatment facility expressing doubts as to Cemech’s motivation for effective treatment and also noted a prior DUI for which Cemech had received a diversion. Based on these two factors, the district court denied Cemech’s application for probation.
Cemech argues that the district court pronounced a sentence of probation for die involuntary manslaughter conviction and, without legal authority, subsequently modified the sentence to a prison term. This court is in a position to review de novo the record con ceming the substance of the pronouncement of sentence. See Kneller v. Federal Land Bank of Wichita, 247 Kan. 399, 400, 799 P.2d 485 (1990) (reviewing a decision based on documentary evidence de novo).
As we read the facts, the court pronounced the 32-month sentence and then stated, “[B]efore probation can be considered . . . the defendant should serve a period of thirty days in the jail of Jefferson County, Kansas, and then be reviewed for probation.” The court proceeded to outline what the conditions of such a probation would be.
The State correcdy points out that in order for a court to impose a nonprison sentence in the border box context, the court must make findings on the record that an appropriate treatment facility exists as a more effective method than prison for reducing the risk of the offender’s recidivism and that either the offender can be placed in such a program in a reasonable time or nonimprisonment will promote the offender’s reformation. K.S.A. 21-4704(f)(l)-(3). That was not done.
Here, the district court based its denial of probation in part on a finding contrary to those required by statute to justify probation. The court found that Cemech lacked the requisite motivation for an alcohol treatment program. Along with the language of the pronouncement of sentence, this finding indicates that Cemech’s claim that the district court granted him probation is without merit.
Although the court’s intention is clear, there is a problem with the way it proceeded.
In State v. Bost, 21 Kan. App. 2d 560, 571, 903 P.2d 160 (1995), the court held that under K.S.A. 21-4704(f), “a border box classification can be [either] presumptive imprisonment or presumptive probation, and the trial court is given full discretion to decide which to impose.” More generally, if a conviction carries a presumptive prison sentence, the sentencing court may impose such a prison sentence. K.S.A. 21-4603d(a)(l). If the sentence falls within a presumptive nonprison category, the sentencing court may release the defendant on probation; the court can order the defendant to serve up to 30 days in the county jail as a condition of probation. K.S.A. 21-4603d(a)(3). K.S.A. 21-4603d(a)(9) provides that a court may “impose any appropriate combination” of the various authorized dispositions.
The two statutes deal with presumptive prison and presumptive nonprison sentences in the alternative. Only the nonprison sentencing scheme of 21-4603d(a)(l) provides for a preliminary 30-day sentence. The more reasonable reading of these two statutes in the border box context is that a court must exercise its discretion to impose either a presumptive prison or presumptive nonprison sentence up front. At that moment, the court either grants or does not grant probation. If the court grants probation, the court may impose a 30-day jail term as a condition of that probation.
Here, the district court imposed a 30-day jail term in order to provide an opportunity to evaluate Cemech and to advise the court as to the likelihood of his success in the program. Thus, the district court attempted to fashion an order to give itself ample opportunity to achieve the objectives of K.S.A. 21-4704(f) by comparing the offender’s potential for rehabilitation in both prison and nonprison settings. The statutory sentencing scheme governing this case, however, does not appear to provide for the process the judge fashioned. A sentence which does not conform to the applicable statutes is illegal. State v. Ruff, 252 Kan. 625, 628, 847 P.2d 1258 (1993).
Cemech did not challenge the legality of the sentence in district court and does not argue on appeal that his sentence is illegal. “An issue which is not briefed is deemed abandoned.” State v. Wacker, 253 Kan. 664, 670, 861 P.2d 1272 (1993). An appellate court, however, may address such an issue in exceptional circumstances in order to serve the interests of justice or to prevent a denial of fundamental rights. State v. McIver, 257 Kan. 420, 433, 902 P.2d 982 (1995).
By ordering Cemech to serve 30 days in jail and deferring its decision either to grant probation or to impose a presumptive prison sentence, the district court essentially tried to strike a compromise between the two statutory alternatives. We do not believe that can be done. Had the court wished to have the evaluation before deciding whether to grant probation, the appropriate ap proach would have been to continue sentencing until all necessary reports were completed.
Under the fact of this case, we believe the following occurred. The court clearly indicated Cemech would serve his sentence unless it could be shown he was amenable to treatment. He apparently was not amenable and was therefore denied probation.
While the 30-day sentence was not possible if probation had not yet been granted, Cemech was not prejudiced. Had probation been granted, there is no question the 30-day sentence would have been appropriate. If probation was not granted, Cemech was going to be incarcerated anyway, and he would receive credit for all time served. We also note that had Cemech felt aggrieved at the time of the 30-day sentence being imposed without the clear grant of probation, a habeas corpus action would have been available to test his confinement.
As was stated above, the court had not made the necessary findings to grant probation at the time of the 30-day sentence imposition. Any such ruling would have been properly challenged on that ground on appeal by the State.
While the timing of the district court’s sentencing was not correct, the decision reached was supported by what the court had before it to consider, and Cemech was not prejudiced. We see no need for further proceedings.
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Marquardt, J.:
Turner Unified School District No. 202 (Turner) appeals from the district court’s judgment awarding damages, attorney fees, and costs to Robert Felix.
On May 25, 1994, Robert’s son, Christopher Felix, was driving Robert’s 1989 Ford Mustang east on Berry Road in Wyandotte County, Kansas. As Christopher entered an “S” curve near 65th and Berry Road, he encountered a westbound Turner school bus. The car hit a guardrail and was damaged.
Turner stipulated to ownership of the school bus and the damage estimate for Robert’s car.
At the close of Robert’s case, Turner “move[d] for judgment,” arguing that Robert had failed to show an essential element of his case — that the school bus driver was Turner’s agent. The district court denied the motion without further comment.
The school bus driver, Howard L. Bell, testified for Turner, stating that the Mustang was in the middle of the road and that he drove the bus into the ditch on the right side of the road. At 3:25 p.m., when the accident happened, Bell was transporting children home that he had picked up at Highland Middle School.
The district court awarded Robert judgment in the amount of $403.15; attorney fees of $790, pursuant to K.S.A. 60-2006; and costs of $18.50.
Turner argues that the district court erred in denying its motion for a directed verdict because Robert failed to prove that the school bus driver was Turner’s agent.
Turner challenges the district court’s denial of its motion for a directed verdict. The standard for both granting and reviewing a directed verdict is well established:
“In ruling on a motion for directed verdict pursuant to K.S.A. 1992 Supp. 60-250, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought and, where reasonable minds could reach different conclusions based on the evidence, the motion must be denied and the matter submitted to the jury. This ride must also be applied when appellate review is sought on a motion for directed verdict.” Hurlbut v. Conoco, Inc., 253 Kan. 515, 524, 856 P.2d 1313 (1993).
Robert argues that Turner had admitted to the agency relationship and that there was sufficient evidence of an agency relationship between Turner and the school bus driver. This argument is contrary to the pleadings and evidence. In paragraph 5 of Robert’s petition, he alleged: “On or about May 25, 1994, school bus No. 23 was being operated by defendant’s agent and driver, within the scope of his employment, and was done so in a careless and negligent manner
Paragraph 1 of Turner’s answer stated that “all allegations of fact and conclusions of law in plaintiff s Petition are denied except those admitted herein.” Turner’s answer did not admit paragraph 5 of Robert’s petition. K.S.A. 60-208(b) expressly allows the defendant to “generally deny all the averments except such designated averments or paragraphs as the pleader expressly admits.” While Turner could have specifically denied the agency relationship prior to its oral motion for directed verdict, Turner did' not admit that the agency relationship existéd.
“Cases in this jurisdiction have consistently held the mere ownership of an automobile will not support an agency, and will not support liability.” Alcaraz v. Welch, 205 Kan. 163, 167, 468 P.2d 185 (1970).
Turner relies on the above fule and argues that while Tümer stipulated to ownership of the school bus, Robert failed to prove that the bus driver was an agent or employee of Turner.
Tice v. Crowder, 119 Kan. 494, 240 Pac. 964 (1925), contains an extensive discussion of the relationship between the ownership of an automobile and respondeat superior. The rale in Kansas is that there is no “general presumption or assumption that one in possession of anothef’s vehicle is the servant, employee or agent of the owner and acting for the owner.” 119 Kan. at 497-98.
In Tice, 119 Kan. at 501, the court also stated that it was in accord with and quoted from Trombley v. Stevens-Duryea Co., 206 Mass. 516, 519, 92 N.E. 764 (1910), as follows:
“ ‘But to recover, the plaintiff also was required to offer some evidence of the defendant’s responsibility for the .driver’s negligence .... [T]here is no presumption from his mere physical possession that the person operating the automobile was the servant or agent of the corporation. He may have hired or borrowed it or wrongfully appropriated it to his own use, and in neither event would the defendant be chargeable with his misconduct,’ ”
Thus, in Kansas, ownership of an automobile alone is not sufficient to impute the negligence of the driver to the owner. Here, in addition to evidence of ownership, there was evidence that the school bus was being used in á business purpose — transporting school children. Evidence of that business purpose, however, does not establish an agency or employment relationship between Turner and the bus driver. ■ '
“Respondeat superior imposes vicarious liability on the employer for the negligent driving of the employee.” (Emphasis added.) Overbaugh v. Strange, 254 Kan. 605, 614, 867 P.2d 1016 (1994). Un der the doctrine of respondeat superior, “the employer’s liability is based on the acts of an agent or employee.” Smith v. Printup, 254 Kan. 315, 336, 866 P.2d 985 (1993); see PIK Civ. 2d 7.06; PIK Civ. 2d 7.12.
“The burden of establishing the agency is on the party asserting it.” Hand Realty Co. v. Meyers, 234 Kan. 304, 307, 672 P.2d 583 (1983) (real estate broker case).
It is possible that Bell was an independent contractor or the employee of an independent contractor. Bell’s employment, agency, and negligence were all denied by Turner in its answer.
In Tice, 119 Kan. at 499, the court noted that “the process of subpoena makes available to a plaintiff every fact within defendant’s knowledge.” Similarly, in Chandler v. New Moon Homes, Inc., 418 S.W.2d 130, 133 (Mo. 1967), the court noted that the plaintiff never attempted to determine if the track driver was the defendant’s employee through interrogatories or by deposition. The availability of such discovery devices prevents the burden of requiring the plaintiff to prove the existence of an agency or employment relationship from becoming too onerous. Here, one interrogatory question could have established whether the school bus driver was an employee of Turner.
Robert did not prove that Bell was an employee or agent of Turner and, therefore, Robert failed to establish his case. Thus, the district court erred 'in not granting Turner’s motion for a directed verdict.
We reverse due to Robert’s failure to prove that Bell was an employee or agent of Turner.
Turner also argues that the award of attorney fees for work done prior to the filing of the lawsuit is not authorized by K.S.A. 60-2006. The award of attorney’s fees is also reversed.
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Gernón, J.:
Janice M. Fields appeals her sentence imposed by the district court pursuant to the Kansas Sentencing Guidelines Act (KSGA).
Fields pled guilty on the same day to two counts of felony theft which arose out of separate incidents. Both cases came up for sentencing on the same day. At the sentencing hearing, the district court also considered the revocation of her probation for several other convictions. The parties stipuláted that Fields’ criminal history was a “C.”
A 9-C nondrug offense carries a presumptive disposition of probation under the KSGA. However, K.S.A. 1993 Supp. 21-4603e(a)(8) permits the district court to sentence a defendant to imprisonment for a presumptive probation sentence when probation is revoked due to a conviction for a new felony.
Here, the court sentenced Fields to a prison term of 12 months in each case, to be served consecutive to each other and consecutive to the other sentences imposed on the same date due to revocation of her probation on earlier convictions.
K.S.A. 1993 Supp. 21-4720(b) states:
“The sentencing judge shall have discretion to impose concurrent or consecutive sentences in multiple conviction cases. In cases where consecutive sentences may be imposed by the sentencing judge, the following shall apply:
“(2) The sentencing judge must establish a base sentence for the primary crime. The primary crime is the crime with the highest crime severity ranking. ... If more than one crime of conviction is classified in the same crime category, the sentencing judge must designate which crime will serve as the primary crime. ...
“(3) The base sentence is set using the total criminal history score assigned.
“(4) The total sentence assigned for a current conviction event cannot exceed twice the base sentence. . . .
“(5) Nonbase sentences will not have criminal history scores applied, as calculated in the criminal history I column of the grid, but base sentences will have the full criminal history score assigned.” (Emphasis added.)
K.S.A. 1993 Supp. 21-4703(c) defines “conviction event” as “one or more felony convictions occurring on the same day and within a single court. These convictions may result from multiple counts within an information or from more than one information.”
The record is clear that Fields was convicted of counts charged from more than one information on the same day. These convictions, then, would be part of a single “conviction event.”
K.S.A. 1993 Supp. 21-4720(b)(4) refers to a “conviction event.” Therefore, Fields’ sentencing would be included as a “multiple conviction case” and would be subject to the limitations of K.S.A. 1993 Supp. 21-4720(b).
In Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992), the Kansas Supreme Court stated, regarding legislative interpretation:
“ ‘[T]he legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and eveiy part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.’ In re Marriage of Ross, 245 Kan. 591, 594, 783 P.2d 331 (1989).”
Plainly, K.S.A. 1993 Supp. 21-4720 limits the length of the consecutive sentences that can be imposed in “multiple conviction cases.” We believe that this statute is in harmony with K.S.A. 1993 Supp. 21-4608, which deals with the imposition of consecutive sentences when a defendant is convicted and sentenced for a crime when he or she is on probation for a felony. Specifically, see K.S.A. 1993 Supp. 21-4608(c).
We agree with the State’s argument that had the legislature wanted to include any multiple sentencing situation within the scope of K.S.A. 1993 Supp. 21-4720(b), it could easily have done so. It is also correct that while the legislature did not want to include every multiple sentencing situation under K.S.A. 1993 Supp. 21-4720(b), it did want to include “conviction events” such as we find in this case.
The legislature clearly intended to include multiple counts from more than one information under the provisions of K.S.A. 1993 Supp. 21-4720(b).
We note that the 1994 legislature amended 21-4720(b), but that amendment is not applicable in this case. Recently, the Supreme Court interpreted the 1994 amendment as follows: “K.S.A. 1994 Supp. 21-4720(b) applies to multiple convictions arising from multiple counts within an information, complaint, or indictment and not to multiple convictions entered on the same date in different cases.” State v. Roderick, 259 Kan. 107, Syl. ¶ 3, 911 P.2d 159 (1996).
Consecutive Terms
Fields argues that the district court revoked her probation and suspended sentence in several prior cases due to her failure to pay fines and costs and not due to any new convictions.
K.S.A. 1993 Supp. 21-4603e(a)(8) allows the court discretion to sentence an offender to imprisonment even when the sentencing grid presumes a nonprison sentence “[w]hen probation, assignment to a community correctional services program, parole, con ditional release, or postrelease supervision is revoked due to a conviction for a new felony.”
The State argues that the record supports its position that Fields’ probation was revoked due to the new felony convictions. Admittedly, the record could have been more explicit regarding this issue. However, it is apparent that her probation was being revoked due to her felony convictions. The entire, discussion regarding revoking her probation took place in the context of the sentencing hearing for her most recent crimes.
We conclude that the court’s consideration of Fields’ failure to pay restitution and comply with the terms of a previously granted probation is appropriate in determining whether to impose a prison sentence here.
We affirm the trial court’s decision to impose a prison sentence but remand for resentencing pursuant to K.S.A. 1993 Supp. 21-4720(b) to reflect our holding herein. | [
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The opinion of the court was delivered by .
'Mason, J.:
A four-year-old boy, bom out of wedlock, brought this action through his mother as his next friend, against one alleged to be his father, to require the defendant to make provision for his support. This appeal is taken from the sustaining of a demurrer to the petition.
At common law the father of an illegitimate child was under no legal duty to support it. In behalf of the plaintiff it is urged that this rule is not sound in reason and not in keeping with modern ideas of.natural right, and should not be regarded as remaining in force in aid of our statutes by virtue of the act giving that effect to the common law as modified by “the conditions and wants of the people.” (Gen. Stat. 1915, § 11829.) The courts of this country apparently in every case in which the question has been raised have held, that without legislation on the subject, the father of an illegitimate child cannot be required to provide for its support. (7 C. J. 955.) In most of these cases, however, the matter has been treated as settled by the mere fact that the common law recognized no such duty on his part, and the question whether the rule is so repugnant to present-day conceptions, of social obligations that courts should refuse to .follow it has not been extensively discussed.
The common law with ■ almost uniform consistency treated an offspring of parents not married to each other as nullius filius — the son of no one — of no father and no mother. That is to say, it closed ' its eyes to the fact of that relation and in legal aspect ignored its existence. It absolved the mother equally with the father from liability for the support of the child (Ruttinger v. Temple, 4 B. & S. 491), although this has been doubted (Humphrys v. Polak, 1901, 2 K. B. D. 385, 389). It also denied to both parents the legal right to its custody.' The question asked in an earlier case, “How does the' mother of an illegitimate child differ from a stranger? has been interpreted as “stating bluntly this legal doctrine.” (Barnado v. McHugh, Appeal Cases, [1891] 388, 398.) In equity, however, recognition was made of “a sort of blood relationship” (The Queen v. Nash, 10 Q. B. D. 454) that entitled the parents to some consideration in the- matter. -But the common law in failing to require the parent of an illegitimate child to support it did not rest wholly upon the nullius ftlius idea, fos as interpreted in England and in some of the American states it imposed no legal obligation in that respect even upon the parents of legitimate children. ( (20 R. C. L. 622; Tiffany’s Persons and Domestic Relations, 2d. ed., § 116.) By the great weight of judicial opinion in this country parents are ■under a legal duty, regardless of any statute, to maintain their legitimate minor children (20 R. C. L. 622), the obligation being sometimes spoken of as one under the common law and sometimes as a matter of natural right and justice, and often accepted, as’ a matter of course without the assignment of any reason.]^Chancellor Kent says: “The wants and weaknesses of children render it necessary that some person maintain them, and the voice of nature has pointed out the parent as the most fit and proper person. The laws and customs of all nations have enforced this plain precept of universal law.” (2 Kent’s Commentaries '"'189.) Blackstone begins his discussion of the duties of parents to legitimate children thus:
“The duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation, says Puffendorf, laid on them not only by nature herself, but by their own proper act, in bringing them into the world; for they would be in the highest manner injurious to their issue, if they.'only gave their children life that they might afterwards see them perish, jy-By begetting them therefore, they have entered into a voluntary obligation, to- endeavor, as far as in them lies, that the life which they have bestowed-shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents.” (1 Blackstone’s Commentaries, 447.)
The full language of Puffendorf, from which Blackstone made the foregoing condensation, is as follows:
“As to that Maintenance, which Parents owe their Children, it hath been doubted by Authors, whether the Obligation to pay it were perfect or imperfect, or whether it belong’d to expletive or to attributive Justice. .’Tis the Opinion of some, That Parents do indeed owe their Children Maintenance, but then ’tis by the latter kind of Justice only, and not by the forpidr; so that Parents would act very inhumanly, should they deny them this Assistance; yet Children have no Bight to challenge it from thém against thbiryWills, this being the proper effect of expletive Justice: though civil Statutes may. invest Children with a full and perfect Bight in this Matter. Rut’.we are rather inclined to think, That Parents lie under a Perfect Obligation- to maintain their Children, so long as they are unable to maintain themselves; and this Duty seems to be laid upon them', not only by .Nature itself, but by their own proper Act, in bringing them into the World:,] For they would be in the highest manner injurious to their Issue, should they have given the Children Life, for no other Reason, but that they might'afterwards see them perish. By the Act of Generation therefore they seem" to have voluntarily bound themselves, to endeavour as far as in them lies, that the Life which they have bestowed shall be supported and preserved. And thus the Children will have a perfect.Bight of receiving Maintenance from their Parents. Yet this right is hinder’d from producing all its effects by the natural Weakness of Children under that Age, in which they cannot provide for their own Support. And consequently they do not so much want Right as Power and Strength to execute that Right; only in some Points the civil Ordinances help them out, and compel' their Parents to keep and feed them, upon refusal.’-7 (Puffendorf’s Law of Nature and Nations, Book IV, Chapter XI, § 4.)
To this Puffendorf added these words:
“Farther, Maintenance is due not to legitimate Children alone; but to natural, and even to incestuous Issue. For what Reason is there that the poor innocent Infant should be suffer!d to famish for another’s Sin?” (§ 6.)
A sufficient reason for holding parents to be under a legal obligation,' apart from any statute, to support their legitimate child while it is too young to care for itself, is that the liability ought to attach as a part of their responsibility for having brought" it into being. If that reason is not found convincing, it would be useless to seek others. And it does not in the least depend for its .force upon the fact that the parents were married to each other, but is equally persuasive where that is not the case. It was true when Puffendorf elaborated it and applied it to illegitimate children in 1672, and it is true now.
.The courts of some states, in the absence of a statute on the subject, hold the mother of an illegitimate child liable for its support, usually upon the ground that such liability is an incident to her right of custody (7'C. J. 956), which is sometimes assumed to exist at common law — a sort of inversion of the process by which a statutory duty- of support has been said to carry with it the right of custody. (Humphrys v. Polak, 1901, 2 K. B. D. 385, 389.) This court does not regard the duty of support as dependent upon the ■right to custody. (Riggs v. Riggs, 91 Kan. 593, 603, 138 Pac. 628.)
.In a commissioner’s opinion in a statutory action to charge the father of an illegitimate child with its support it was said: “Under the law, the -mother ,of an illegitimate child is all the while known, and. is at all times, at least during its infancy, liable for its support, while the father of such child is unknown until ascertained by judicial proceedings, unless he acknowledges its pafernitjr; and therefore, he is liable only when the paternity of the child is acknowledged by him, or it is established by judicial inquiry.” (The State, ex rel., v. Reed. 46 Kan. 500, 502, 26 Pac. 955.) This was sufficiently accuate for the purposes of the case, the paternity of the child being the matter to be determined. No attempt was there made to state'the ground of the mother’s liability. As already indicated we place it upon the fact of parentage, and upon that basis it must extend to the father as well. The circumstance of the father’s being unknown could not relieve him from the nonstatutory inherent obligation if it exists at all, although the difficulty of ascertaining the paternity might as á matter of policy influence legislation on the subject. ■
We do not think the legislature should be regarded as intending to relieve the father from this obligation to the child by the enactment of the statute above referred to,1 which authorizes the mother of an illegitimate child, if she sees fit, to maintain an action for her benefit in the name of the state against the putative father, and provides for the enforcement of a judgment by imprisonment. (Gen. Stat. 1915, ch. 50.) It would obviously be inadequate to cover the entire field of paternal liability, since the mother might not care to institute such a proceeding, or might die without instituting it. The measure is one providing machinery for the enforcement of a duty already existing rather than one creating a new obligation. Parental liability for the support of legitimate children did not originate with the statute of 1911 (Gen. Stat. 1915, §§ 3410-16) imposing punishment for a default in that respect. Wagering contracts valid at common law are held nonenforceable even where they do not fall within the prohibition of statutes condemning gambling. (Cleveland v. Wolff, 7 Kan. 184, 12 R. C. L. 747, 748) A rule of the common law may be unadapted to the conditions ancl unsuitable to the needs of the people of this state, although the -change that has taken place is rather in the manner of looking' at things — in the standards of obligation and conduct — rather than in more objective matters. 1 instances in which this court has refused to follow a rule of the common law, for reasons based in a greater or less degree upon its essential unsouiidness, are collected in Cooper v. Seaverns, 81 Kan. 267, 105 Pac. 509, where the grounds of such departure are fully discussed.
The right of a child of tender years to look to its father for support being determined, the matter of procedure presents-no great difficulty. See Craig v. Shea, 102 Neb. 575, and Sanders v. Sanders, 167 N. C. 317. A court of equity in its historical capacity as guardian of infants can readily devise means for its enforcement.
The judgment is reversed and the cause is remanded with directions to overrule the demurrer to the petition. j) | [
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The opinion of the court was delivered by
Mason, J.:
Gerald Brown was arrested for an alleged violation of the civil-rights law forbidding discrimination in certain cases on account of race. A motion to quash the information was sustained, and the state appeals.
The statute involved, so far as here important, reads: “if . . . the owner or owners, agents, trustees or managers in charge of any inn, hotel or boarding-house, or any place of entertainment or amusement for which a license is required by any of the municipal authorities of this state, . . . shall make any distinction on account of race, color, or previous condition of servitude, the person so offending shall be deemed guilty of a misdemeanor, . . .” (Gen. Stat. 1915, § 3791.)
The information is somewhat indefinite in its allegations, but will be. assumed to be sufficient in that respect. It charges that the defendant “did . . . unlawfully make a distinction with one William Bradshaw, on account of race, color or previous condition of servitude, by refusing to serve him, the said William Bradshaw, lunch in his restaurant and lunch room, for which the said Gerald Brown is duly licensed under and by virtue of the laws of the state of Kansas to serve the general public meals and lunches.”
1. In the state’s brief it is contended that a restaurant or lunch room is a hotel or inn and also a boarding-house, within the meaning of the statute. The words “hotel” and “inn” are practically synonymous (4 Words and Phrases, 3625; 2 Words and Phrases, 2d series, 1083, 1084) although a distinction between them is sometimes made, as by calling an inn of the better class a hotel (Webster’s International Dictionary). An inn, as the term is ordinarily used, offers to travelers both lodging and food. (See Words and Phrases, title “Inn.”) “A coffee-house or a mere eating house is not an inn. To constitute an inn there must be some provision for the essential needs of a traveller upon his journey, namely, lodging as well as food.” (Bouvier’s Law Dictionary, Rawle’s Third Revision, 1582.) “The keeper of a restaurant who has no beds for the accommodation of travelers is not an innkeeper ... a mere restaurant or eating house is not an inn.” (Wandell’s Law of Inns, etc., 27.) “The keeper of a restaurant or cafe, so far as those terms are used to designate a mere eating house, where no provision is made for lodging the guest, is not an innkeeper.” (16 A. & E. Encycl. of L. 512.)
A boarding-house differs from an inn or hotel both in being less public in character and in arranging with its guests to provide for them during some more or less definite period. (8 C. J. 1132; 16 A. & E. Encycl. of L. 510, 511; 4 Words and Phrases, 3624.) The same considerations would obviously distinguish it from a restaurant or lunch room.
While in some cases a greater liberality of construction might be justified, the specific mention of inns, hotels and boarding-houses, without words extending their meaning, in the definition of a public offense, too strongly suggests the exclusion of restaurants to allow their inclusion by construction.
A restaurant keeper may of course have rooms for rent to his customers or may accept boarders by the week, thus making his establishment a hotel or a boarding-house, but the information does not allege that the defendant did so, and does not expressly or even by implication characterize his place as one of those named in the statute.
2. It might be suggested (although the contention has not been made) that the information is good by virtue of the allegation that the defendant was licensed to serve the general public meals and lunches. The statute prohibits racial discrimination by the owner of “any place of entertainment or amusement for which a license is required by any of the municipal authorities of this state,” and a restaurant in one sense is a place of entertainment. We regard the context however, as associating the word entertainment with amusement, so that what is meant is that the prohibition besides covering on the one hand inns, hotels and boarding-houses, irrespective of any question of license, covers on the other hand places of diversion (such for instance as shows of any kind) for which a local license is exacted. Under a statute enacted in 1913, a state license is necessary for the conduct of a restaurant (Gen. Stat. 1915, § 5086), but we think this is not the character of license indicated by the phrase, “required by any of the municipal authorities of this state.”
The judgment is affirmed.
HopKINS, J., not sitting. | [
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The opinion of the court was delivered by
BueCH, J.:
The action was one to recover on a promissory note. The defense was, the note had been procured by false representations, and the plaintiff was not an innocent holder. The defendant prevailed, and the plaintiff appeals.
Painter was cashier of the bank, and in active management of its affairs. Munn was a director. Bracey was a farmer, living near Galva. By means admitted to have been fraudulent, Munn sold to Bracey ten shares of the corporate stock of the Bankers Mortgage Company, taking in payment of the price a promissory note for $1,500, in which the bank was named as payee. Munn delivered the note to the bank, and was credited with the amount of it. At maturity of the note, a renewal note was given, and the action was based on theriatter instrument. The cause was tried to a jury, which returned findings of fact, and a general verdict for the defendant. The judgment read as follows:
“Wherefore, it is ordered and adjudged by the court that the defendant have, and recover of and from the plaintiff his costs taxed at $37.60.”
It is conceded the judgment included costs made by the defendant. Some time after judgment, the clerk of the court mailed to the bank a bill of costs amounting to $37.60, giving credit for the deposit to secure costs in the sum of $25. The cashier remitted the balance to the clerk, who distributed the costs, and receipted in full to the bank. The defendant moves to dismiss the appeal.
The writer is able to appreciate the feelings of the attorney for the bank when he was confronted with the motion to dismiss. In the case of York v. Barnes, 58 Kan. 478, 49 Pac. 596, he was associated with attorneys who succeeded in defeating a tax deed. The court, however, required our client to pay the taxes. He was anxious to close up the litigation, and paid the money into court. The tax-deed holder appealed. Believing the particular circumstances were such that our client ought not to reimburse the tax-deed holder, we appealed. This is what the court said: • -
“The defendant, having voluntarily complied with the judgment so far as it is adverse to him, and having paid the money into court for the use of the plaintiff, is in no position to insist on errors in its rendition.” (p. 480.)
The principles involved was announced and applied as early as 1874, in the case of Babbitt v. Corby, Adm'x, 13 Kan. 612. In that case, Babbitt claimed title to land under tax deeds. The deeds were set aside, and he was given a lien for taxes. He appealed, but afterwards accepted the money adjudged to be due him. In dismissing the appeal the court said: .
“By voluntarily accepting the proceeds of the judgment, the plaintiff in error waived any errors, if errors there were, in it. A party who complains of a judgment must be consistent in his conduct with reference to it. If he recognizes its validity, he will not be heard to say that it is invalid.” (p. 614.)
In the Babbitt case, the appellant recognized validity of the judgment by accepting .its benefits. In the York-Barnes case Barnes recognized validity of the judgment by accepting its burden and paying it.'
The cashier pleads ignorance of the consequences of his conduct, and the board of directors of the bank declares it had no intention of abandoning the appeal. In no case in which an appeal has been dismissed was it the intention of the party recognizing validity of the judgment to prejudice his appeal, and in several instances the intention not to prejudice the appeal was expressly declared. In the case of The State v. Conkling, 54 Kan. 108, 37 Pac. 992, the defendant was adjudged guilty of contempt of court for obstructing a "receiver, and was sentenced to pay a fine and to stand committed until fine and costs were paid. After his motions for new trial and in arrest of judgment had been denied, he paid the fine and costs, under protest; and declared he reserved the right to appeal. In dismissing his appeal the court said:
“It appears that the sentence of the law has been executed, and nothing is left for further controversy. By his own act, Colliding has satisfied and discharged the judgment entered against him. His protest and attempt to reserve the right of appeal are unavailing. The statute does not provide for nor contemplate an" appeal from a discharged judgment.” (p.v 108.)
In the case of Crouse v. Nixon, 65 Kan. 843, 70 Pac. 885, members of a canvassing board complied with a peremptory writ of mandamus to count votes and certify the result. Two members made the count and certificate, under written protest, and appealed. In dismissing the appeal the court said:
“It is not necessary for us to examine into the merits of the case, or, more accurately speaking, we cannot do so. The plaintiffs in error have appealed from an order to which they had already yielded obedience. That they cannot do. They cannot perform the required act and at the same time appeal from the order requiring its performance.” (p. 846.)
In the cases of Waters v. Garvin and Waters v. Clyne, 67 Kan. 855, 73 Pac. 902, actions were commenced to enjoin collection of taxes. Demurrers to answers were sustained, and judgments for costs were rendered thereon in favor of the. plaintiffs. The board of county commissioners allowed the costbills, and ordered them paid, on condition the sums should be paid back if the judgments should be reversed. In dismissing the appeals the court said:
“If the board of county commissioners had intended to preserve the rights of the county to prosecute proceedings in error to this court, it should not have complied with the judgment of the court by paying the costs in the actions. After having done so there is no question open for dispute between the parties. The judgment of the court below having been complied with, nothing is left to litigate in this court. The conditions under which the costs were paid, that if the cases should be reversed and the costs collected from plaintiffs that they should be repaid to the county, does not serve the purpose of keeping the causes pending nor the judgments, the validity of which the board recognized by complying therewith, open.” (p. 855.)
In the case of Fenlon v. Goodwin, 35 Kan. 123, 10 Pac. 553, the plaintiff attached property. The court discharged the attachment, and the plaintiff appealed. Afterwards he released the property. In dismissing the appeal, this court said:
“The plaintiff has elected to end the controversy, and by his voluntary act has yielded all that was sought in the application for a dissolution of the attachment. He has ratified and affirmed the order of the district judge. The thing commanded to be done in the order made bj'' the judge has since been voluntarily done by the plaintiff, and thus he has confessed that' the order was rightfully made, and has thereby waived any 'error that may have occurred.” (p. 125.)
.. In the case of Round v. Power Co., 92 Kan. 894, 142 Pac. 292, the action was one to recover land or its value. A demurrer to the plaintiff’s evidence was sustained, and judgment was rendered against him for costs. He paid the costs, and appealed. Tn dismissing the appeal, the court said:
“Performance of the judgment by the payment of the costs in effect ends the litigation, as an appeal does not lie from a judgment which has been performed.” (p. 895.)
In the case of Seaverns v. The State, 76 Kan. 920, 93 Pac. 163, the subject of consistency in attitude toward a judgment complained of was considered at length, and all previous decisions of the court were collated. In the opinion it was said:
“Quite early in the history of this court the position was taken that a party who complains of a judgment must 'be consistent in his conduct with reference to it, and if he recognizes its validity or acts contrary to the assumption that it is erroneous he will not be heard to say on appeal that it is erroneous. (Babbitt v. Corby, Adm’x, 13 Kan. 612.) In applying this rule less liberality of conduct has been permitted to appellants than many other courts of last resort are disposed to allow when dealing with the same subj ect, but manifestly the case must be determined according to those principles, which have long been adopted and followed here.” (p. 921.)
It is suggested that the act of the cashier amounted to a compromise or release of claim, which required special authority from the board of directors. The cashier did not compromise or release any claim of the bank. In the course of its business he paid one of its bills. It is not contended he might not do this, and having made him executive officer of the bank and put him in charge of its business, the board of directors is not in position to ask immunity from consequences of his incompetency.
In perusing the record, the court has received certain impressions respecting the merits of the case. Fraud in procuring the original note is admitted, and it devolved on the bank to clear its skirts. The only testimony in its behalf which is abstracted was given by its cashier. Evidently he was not believed, and apparently for good reason. Therefore, the prima facie case established by proof of fraud, that the bank had guilty knowledge of the infirmity in the paper when it cashed it, was not overcome. This being true, it is not necessary to inquire into the soundness of the findings of the jury on that subject. It may be conceded the jury had no evidence of specific facts on which to base findings that the bank did have notice, and that the findings returned were speculative. The law made a provisional finding'of notice to the bank from the fraud, and this finding stood until the plaintiff proved absence of notice by reliable evidence.
The plaintiff’s brief is framed on the erroneous theory that the defendant was obliged to prove the bank had actual notice of the fraud, as appears from the follbwing extracts:
“To constitute a defense against this bank, it was incumbent upon ap-pellee to prove, first, that the bank knew before it purchased the note of the transaction between appellee and Munn, and second, that it knew what representations had been made by Munn to appellee in that transaction, and third, that it knew that the representations of Munn to appellee were fraudulent and untrue. . . .
“Appellee had a fair opportunity to introduce any evidence that he had to show that the bank had knowledge of the fraud. We think he failed absolutely in his proof, and if he did, this court should do what the trial court should have done, direct a verdict for the bank.”
So much has been said about the merits of the case because the principles of law involved are not open to debate. The interesting question, not heretofore decided by this cohrt, whether, if otherwise 'innocent, the bank might be a holder in due course of a note taken directly to it in a transaction of sale between third persons, must be left open, because, for reasons which have been stated, the appeal must be dismissed.
The appeal is dismissed. | [
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The opinion of the court was delivered by
MasoN, J.:
This is an action brought by C. B. D. Colver, to whom a warranty deed in the usual form had been executed, against Eugene Mclnturff and his wife, who were the grantors in the first of a series of conveyances (two of which were quitclaims) which ended in the warranty deed to the plaintiff, for a breach of the covenants of the deed executed by the defendants. Judgment was rendered for the defendants and the plaintiff appeals.
1. The question involved is whether the plaintiff was entitled to the benefits of the covenants relied upon. The doubt on that subject arises from the fact that the defendants at no time had any title to the land described in the deeds and neither the defendants, the plaintiff, nor any of the intervening grantors ever had possession of it. The defendants’ claim of title was under a sheriff’s deed based upon a mortgage-foreclosure judgment which was utterly void for want of service upon the'owner of the fee. At the time the deed by the defendants was made the land was in the open and exclusive possession of the owner, who has continued in its occupancy ever since. The plaintiff brought an action against him to recover it and was defeated on the ground of having no title.
The greater number of state courts which have passed directly upon the matter hold that covenants of warranty and seizin in a deed by a grantor who has neither title nor possession to a grantee who does not obtain possession do not run with the land. A less number hold that the majority doctrine is merely a specific application of the more general rule that a covenant after its breach becomes a mere personal claim and does not run with the land, and that this rule is based solely upon the nonassignability of a chose in action at common law and therefore should not be followed in jurisdictions where such assignments are permitted. The decisions upon the point are collected in notes in 14 L. R. A., n. s., 514 and L. R. A. 1916 D, 613. Later cases bearing on the matter are: Eli v. Trent, 241 S. W. (Ky.) 324; Merchants Natl. Bank v. Otero, 24 N. M. 598; Beecher v. Tinnin, 26 N. M. 59; Gulf Coal & Coke Co. v. Musgrove, 195 Ala. 219.
A detailed discussion of a question upon which so much has been written seems unnecessary. Our view is that the covenants of a deed which is made by a grantor who has neither title nor possession to a grantee who obtains no possession do not run with the land and do not upon that principle pass with succeeding conveyances; and this not merely because the covenants are broken as soon as the deed is made, resulting in the accrual of a personal cause of action, but also because inasmuch as the grantor gives no right to the land and the grantee takes none, no interest in it is passed and there is nothing to which the covenants can attach and the transfer of which they can follow. They cannot run with the realty because they have not become attached to it. In the situation stated, if the grantee should die intestate his heirs would take nothing. They would take no realty, for their ancestor had none; and they would not take the right of action on the broken covenants, for that would pass to the administrator.
Whether in the situation stated the right to recover damages for the breach of covenants would pass by the grantee’s execution of a deed, by virtue of its provisions other than those essential to the passing of such title to the realty as he had, is a different question and one the answer to which depends upon-the contents of the deed. Obviously, there might be inserted in a deed an express assignment of that right, which would be effective. There is good ground for the argument that one who, having received a deed with the usual covenants, but having neither title nor possession, executes to another a like document, intends thereby to transfer by assignment all rights acquired under the deed to him, including that 'of recovering damages for the breach of covenants. But he who executes a mere quitclaim, which involves no assertion of title on his part and does not purport to pass any, and in which he undertakes no responsibility, cannot in our judgment be regarded as intending to transfer anything more than such interest in the property as he may have, and such covenants as in strictness run with the land — he gives only such rights as his heir would receive should he die intestate, which in this case would be nothing.
We do not find this distinction between a deed of general warranty and a quitclaim to have been the basis of a decision upon the question whether a right of action was assigned, but in discussions of the subject suggestions are made as to the matter depending on the language of the deed, and in most of the cases where such right is held to have passed although the covenant had already been broken, the conveyance has been one- with warranties. It is not necessary now to decide whether or not a warranty deed should be deemed to operate as an assignment of a claim for damages for a broken covenant, but we hold that a mere quitclaim does not do it.
2. The plaintiff contends that whatever effect the want of possession by the grantor in a warranty deed might otherwise have upon the question whether its convenants run with the land is removed by the statute reading: “Any person claiming title to real estate may, notwithstanding there may be an adverse possession thereof, sell and convey his interest therein, in the same manner and with like effect as if he was in the actual possession thereof.” (Gen. £>tat. 1915, § 2055.) He asserts that such is the purpose of the stat ute, that it has been so interpreted by the supreme court of Missouri in Vancourt v. Moore, 26 Mo. 92, 96, decided in 1857, and that that interpretation is binding upon this court. It is true that the statutes of Missouri contain a section in the language quoted antedating the creation of the territory of Kansas, and the section was enacted by our legislature in 1868. But it was first adopted by Kansas in 1855, in the course of the assimilation of practically the entire statutory law of Missouri. (Gen. Stat. 1855, ch. 26, § 4.) In 1859 the whole act of which it was a part was repealed and a new one substituted which contained a section reading: “Adverse possession of real property does not prevent any person from selling his interest in the same.” (Laws 1859, ch. 30, § 5.) In 1868 the original act was readopted with some changes, none of which affected this section. (Gen. Stat. 1868, ch. 22, § 6.) An interpretation placed upon the statute by the court of last resort of Missouri in the interval between the repeal and reenactment of the section in question is not binding on this court. The second enactment was an adoption rather of the earlier Kansas law than of the Missouri statute with such construction as had in the meantime been placed upon it. A Missouri decision, to fall within the principle invoked, should have been rendered before 1855.
3. Moreover, the Missouri decision did not amount to a definite interpretation of the statute. In the course of the opinion of one of the judges, it was said:
“The fourth section of the act concerning conveyances empowers any person claiming title to any real estate, notwithstanding there' may be an adverse possession thereof, to sell and convey his interest therein in the same manner and with the like effect as if he was in the actual possession. It is conceived that this provision does away with that rule of the common law which required a grantor of land to be seized thereof, when he makes his deed of conveyance, in order that his covenant of warranty may attach to and run with the land. This section was introduced to enable persons having claims to land without possession, or even in case of adverse possession, to alien such lands as though they were seized thereof.” (p. 96.)
The section was referred to in Allen v. Kennedy, 91 Mo. 324, 330, “as having some bearing on the question” of covenants running with the land, and portions of the opinion in that case containing such reference were quoted in Coleman v. Lucksinger, 224 Mo. 1, 16, 27. These utterances, while tending in that direction, fall short of a definite determination that the statute has the effect claimed by the plaintiff.
In our judgment the sole purpose of the provision that a claimant may convey whatever interest he has in land, notwithstanding an adverse occupancy is to abrogate the common-law rule that the conveyance of land held adversely is unlawful, being in effect cham-pertous from its tendency to stir up litigation. (11 C. J. 254, 256; 5 R. C. L. 280; Richards v. Thompson, 43 Kan. 209, 23 Pac. 106).
The judgment is affirmed. | [
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The opinion of the court was delivered by
MasoN, J.:
On May 28,1919, E. B. Snavely sold to J. B. Floersch, Carl Floersch and William Lind, as trustees for a group of investors (in which the defendants herein were included) an oil and gas lease on 5,250 acres of Texas land, for $20,000. The contract of sale provided, among other things, that within sixty days Snavely should raise $20,000 by the sale of a part of the lease or an interest or interests therein, which sum should be used to reimburse those who had furnished the purchase price. P. J. Weik and P. F. Dobson became sureties for the faithful performance by Snavely of this part of the contract, the bond being made out, however, for $15,000 because one-fourth in interest of the beneficiaries of the trust, including the defendants, waived its protection. The $20,000 was not raised, and the trustees brought this action against Snavely and his bondsmen on account of his omission in that regard. The defendants filed an answer consisting of a general denial, with a specific allegation that the contract referred to had been superseded by one made the next day between the trustees and their beneficiaries. At the trial the defendants contended that Snavely’s failure to raise the $20,000 was caused by the refusal of the plaintiffs to perform their part of the agreement. The court directed a verdict for the plaintiffs, and the defendants appeal. The portion of the contract of sale necessary to be here considered reads:
“It is mutually agreed by and between parties hereto that 1000 acres of the acreage hereinbefore described shall be set apart (said acreage to be agreed upon by the parties hereto), and said acreage so set apart shall be syndicated for $100,000.
“The parties of the second part [the plaintiffs] hereto shall issue trustee certificates covering said $100,000 and the party of the first part [Snavely] for and in consideration of the purchase by the parties of the second part of the above-described lease do hereby covenant and agree that he will sell 20 per cent of said syndicate within sixty days of the execution of this agreement and that he will so sell said twenty per cent for the net sum of $20,000 and will pay said sum to the parties of the second part for the use and benefit of the purchasers and owners of said lease which said purchasers and owners are the beneficiaries named in the Declaration of Trust executed by the parties of the second part. Said $20,000 so accumulated by the sale of said certificates shall be employed and used by the parties of the- second part hereto to reimburse said owners.
“The party of the first part further agrees that he will further sell 20 per cent more of the said certificates as rapidly as possible and that the proceeds derived from said sale, which shall not be less than $20,000, shall be used as follows: 20 per cent thereof for commission to the salesman employed to sell said certificates and the balance thereof for the drilling of the first well to be drilled upon said 1000 acres.
“The remaining interest in said syndicate, 60 per cent, shall be divided, among the beneficiaries of said trust in proportions in which they have invested in said lease. The balance of said acreage, 4250, shall be assigned by the parties of the second part to Carl Floersch, trustee, and said acreage shall be sold by P. J. Weik, P. F. Dobson and E. B. Snavely or their agents as exclusive salesmen and the proceeds of said sale shall be distributed among the beneficiaries under said trust in the proportion in which they have contributed to the purchase of said lease. It is mutually agreed that the said P. J. Weik, P. F. Dobson and E. B. Snavely and their agents shall have the exclusive right to sell 4250 acres of said lease at a price agreed upon between themselves and Carl Floersch, trustee, and that said agents shall receive such commission as shall be agreed upon by themselves and said trustee, and it is further agreed that the said Carl Floersch, trustee, shall have full power and authority to issue all due and proper certificates of assignment and all assignments necessary to effect the sale of said acreage. '
“It is further expressly agreed and understood that for the purpose of reimbursing said beneficiaries and owners, the party of the first part may and shall have the right and privilege to sell said last-described acreage to pay the proceeds of said sale to parties of the second part, and that so much of the proceeds of said sale shall be so deposited with said second parties as the party of the first part may designate may be applied by him towards the obligations of the party of the first part to reimburse said beneficiaries. And that if the party of the first part shall reimburse said beneficiaries from and out of the proceeds of the sale of the last-described acreage, then and in that event Iris obligation to sell 20 per cent of said syndicate within 60 days shall cease, provided that nothing herein shall be construed to relieve the party of the first part from his obligation to fully reimburse said beneficiaries on or before 60 days from the execution of this contract. It is the sense and in-tendment of this contract that the party of the first part is to reimburse the beneficiaries and that he may reimburse them,either by selling said certificates in said syndicate or by the sale of said acreage, or both.”
1. Stated briefly, the effect of the contract appears to be that the plaintiffs as trustees became owners of the lease by the payment of $20,000 under an arrangement that within 60 days Snavely was to get that amount back for them, either by selling enough shares in 1,000 acres of the lease at a valuation of $100 an acre, or by selling enough other acreage for the purpose, at a price to be agreed upon between Snavely and his associates and one of the plaintiffs. It was conceded that no part of the $20,000 had been raised, and the principal issue involved is whether the evidence re quired the submission to the jury of the question whether Snavely was prevented from carrying out his part of the agreement in this regard by the refusal of the plaintiffs to perform acts incumbent on them, necessary to that end.
A trust agreement entered into immediately after the purchase of the lease, between the plaintiffs and the subscribers to the' funds used in payment therefor, helps to interpret the contract between Snavely and the plaintiffs, and shows that it was the intention that the plaintiffs as trustees should issue for sale certificates of ownership of shares in the lease or parts thereof of the par value of $200 each, and the arrangement to “syndicate” 1,000 acres appears to have had reference to the sale of certificates of this character. We think there was some evidence tending to show that the plaintiffs refused to issfie these certificates so as to make'them available for the use of Snavely and his associates and that such refusal rendered their attempts to sell them futile. Snavely gave testimony to this effect:
The defendants had some certificates printed and got them ready for sale. Snavely asked Carl Floersch (who, according to the plaintiffs’ evidence, had charge of the matter) to issue them, and he said he would not. He asked him for certificates but did not get any. He wanted the certificates so he could deliver them if he sold them. “They were to be delivered to the beneficiaries in their names. We could not sell them unless they had been issued." He did not, however, ask the trustees to deliver to him a certificate running to any individual he had sold to.
Weik testified: “I never had a certificate offered to me for sale. Mr. Floersch said he would not sign a certificate. ... I had some sales made. ... I asked Mr. Floersch to issue certificates to me. I did not tell him who my purchaser was. . . . Mr. Floersch said he would not issue any because of the blue-sky law.” J. B. Floersch testified that no one ever asked him for any certificates; that Carl [Floersch] was to issue them; that none were issued; that Carl did not issue them because the defendants did not perform their part of the contract; that the defendants could have got them; that the plaintiffs were ready to issue them. Carl Floersch testified that Snavely never demanded that he should issue any certificates; that none were delivered although some were signed. It is of course not now important that the testimony of the defendants was contradicted. Issues of fact were presented, which should have gone to the jury, as to who was in fault in the matter of the failure to issue certificates, and as to what effect this had upon their intended sale.
Snavely also testified: “Mr. [Carl] Floersch and I never agreed on the price or the number of acres of land in the oil lease that was left over the 1,000 acres to be syndicated. I asked him to give me a price at which it could be sold, and he did not do it. He said he did not want to give a price until the rig was on the ground. He did not give me a price. ... I told him this acreage could be sold if he would put a price on it. He said he would not put a price on the acreage until there was a rig on it.” Snavely had the option of raising the $20,000 or a part of it by the sale of acreage (other than the thousand acres to be “syndicated”) at a price to be agreed upon between the defendants and Carl Floersch, and if there was in fact a refusal to agree upon a price the benefit of this provision of the contract was denied to the defendants. Whether this was the case was another matter to be submitted to the jury.
2. The defendants conceive that after June 17, 1919, the date the present blue-sky law (Laws 1919, ch. 153) took effect, the certificates could not be sold in Kansas without a permit from the bank commissioner, and that it was the duty of the plaintiffs to obtain one. It is at least doubtful whether such a permit was not required by the law in force when the contract was made, by virtue of “speculative securities” being therein so defined as to include “all securities into the specified par value of which the element of chance or hazard of speculative profit or possible loss equal or predominate over the elements of reasonable certainty, safety and investment,” and “all securities the value of which materially depends on proposed or promised future promotion or development rather than on present tangible assets and conditions.” (Gen. Stat. 1915, § 9458.) That, however, need not be determined. While the property to be sold belonged to the plaintiffs, and the defendants in a sense were to sell it for them, they did not occupy the position of ordinary salesmen. Snavely had agreed to raise $20,000 by the sale of these certificates as a part of the contract by which he sold the lease to the plaintiffs. It was incumbent upon the plaintiffs to cooperate with him and his associates in marketing the certificates, and in that connection to take such proper steps toward the obtaining of a permit as could only be taken by them. But in view of Snavely’s relation to the matter it was for him to take the initiative in the matter if he wished to sell in states requiring a permit, calling upon the plaintiffs for such action on their part as might be necessary. According to his own testimony he did no more in this regard than to ask the plaintiffs to get a permit. This did not have the effect of putting them in default.
3. The plaintiffs contend that the judgment should be affirmed on the ground that the answer did not present the issues which have just been discussed. The petition alleged that the plaintiffs had fully complied with all the terms of the contract sued upon which were incumbent upon them. Aside from the allegation that the contract sued upon had been superseded, which does not affect the present question and will be considered later, the answer was a mere general denial. There are decisions to the effect that under similar pleadings the defendant cannot show a failure of the plaintiffs to perform a condition on his part, but must, if he is to rely on that as a defense, plead it specifically, setting out the particulars of the default (13 C. J. 739, note 20; National Sur. Co. v. Queen City Co., 63 Colo. 105, and authorities collected at page 108), although some of the cases cited are affected by special statutes or exceptional circumstances. It is clear that the purpose of written pleadings will be better subserved by such a practice. But whether or not the evidence concerning the issuance of the certificates, the agreement on a price at which acreage might be sold, and the blue-sky law, was within the issues presented by the pleadings as they stood, it was admitted, some of it without objection, and cannot now be disregarded. The plaintiffs in making their case in chief testified on direct examination that no demand was made on them for the certificates, and their evidence as to their attitude in that matter seems as full as could be desired. Had the point that the pleadings presented no issue concerning the issuance of the certificates or the pricing of the acreage been made at the trial and sustained it is possible that leave to amend the answer might have been obtained and acted upon.
4. The claim of the defendants that the rights of the plaintiffs under their contract with Snavely were affected by their subsequent agreement with the beneficiaries for whom they were trustees is without merit. The later contract related to the manner in which the trust was to be administered. It called for the sale by the plaintiffs of “units” or certificates of interest in the lease, but the performance of the first contract would have been in fulfillment of this arrangement and not inconsistent with it.
5. Judgment was rendered for $15,000. The defendants contend that if liability were established the recovery should have been limited to the actual damage the plaintiffs suffered by the failure of Snavely to sell certificates or acreage to the amount of $20,000, and as the trustees still had the lease out of which the interests to be sold for this sum were to have been taken, the loss to all the beneficiaries could not have been as- much as $20,000, and the loss to those protected by the bond could not have been as much as $15,000. The plaintiffs suggest that this question was not raised in the court below and ought not to be considered here. That fact, if established, might be important if the judgment were not to be reversed upon other grounds. Inasmuch as a new trial is to be had it is desirable that the proper measure of damages be now determined. The action does not involve a rescission of the contract for the purchase of the lease by the plaintiffs. They still have the property which Snavely undertook to sell for $20,000. We see no reason why the $15,000 which they seek to recover should not be diminished by the value of what they would have parted with to obtain that sum, unless the difference should be made up by special damages growing out of exceptional circumstances, which have not been pleaded.
The judgment is reversed, and the cause is remanded with directions to grant a new trial, to be held upon these issues only— whether the plaintiffs by failing to issue certificates when they should have done so or by refusing to set a price for which acreage might be sold, prevented Snavely from raising the $20,000 by the sale of certificates or acreage, and if not, how much loss the plaintiffs suffered by reason of the sum not being raised in that manner. | [
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The opinion of the court was delivered by
Bueoh, J.:
The action was one to foreclose a mechanic’s lien. The defense was that the lien was filed for building material sold by the plaintiff at a time when it had not complied with the provisions of a license-tax ordinance of the city in which plaintiff did business. Judgment was rendered for the defendant, and the plaintiff appeals. The ordinance reads as follows:
“Section 1. An annual license tax is imposed upon all persons doing business within the limits of the city of Harper, in the county of Harper, and the state of Kansas, in the following sums, to wit: . . .
“Lumber and coal dealers, $10 per annum.
“Sec. 5. Any person who shall neglect, refuse, or fail to pay the license herein provided at the time and in the manner required by this ordinance, and shall thereafter engage in any business upon which a license tax is by said ordinance levied, shall on conviction be fined any sum not less than $5 and not more than $100 for each offense, and the cost of the prosecution, and stand committed to the city or county jail until finally the costs are paid.”
In the case of Yount v. Denning, 52 Kan. 629, 35 Pac. 207, the syllabus xeads as follows:
“The mayor and council of the city of Winfield provided by ordinance that no person should carry on the business of a real-estate agent without having obtained a license so to do, imposed a semiannual license tax of $10 on each person engaged in the business, and a fine for a violation of the ordinance. The plaintiffs below carried on the business of real-estate agents in said city without having paid the license tax, and in violation of the provisions of the ordinance. In this case they sue for a commission on a sale negotiated by them while so carrying on said business. Held, That the transaction is unlawful on their part, and they cannot recover.”
In that case the ordinance read as follows:
“Section 1. That no person, firm, company or corporation, shall conduct, carry on or operate in the city of Winfield, Cowley county, slate of Kansas, any of the callings, businesses or occupations hereinafter specified, without first having obtained a license so to do, and having paid the license tax hereinafter prescribed for any such calling, business or occupation so intended to be pursued, carried on, or conducted by any such person, firm, company or corporation.
“Seo. 17. Each person engaged id the business of real-estate and loan agents, or brokers, shall pay a semi-annual license tax of $10.” (p. 633.)
In discussing the subject of license taxes for regulation and for revenue, it was said a license tax differs from other forms of taxation mainly in that it is imposed as a condition before entering upon the conduct of business. The statement may or may not be true, and does not constitute a categorical imperative for framing license-tax ordinances. They may be framed to prohibit engaging in business without first obtaining a license, or they may be framed to protect the revenue without making business done before payment of tax unlawful. The decision was rested, however, not on the statement, which was made by way of argument, but on the nature of the ordinance involved, as appears from the following quotations from the opinion:
“In this case the ordinance prohibits any person from carrying on the business of a real-estate agent without having paid the tax. . . .
“We conclude, then, that the city council of Winfield had the right to impose a license tax as a condition precedent to the right to carry on the business of real-estate agent; that, in the exercise of such right, it declared it to be unlawful for any person to engage in the business within the city without having paid the tax; that the plaintiffs conducted their business in violation of the ordinance; and that they cannot come into court and maintain a cause of action founded on their violation of the ordinance.” (pp. 635, 636.)
The controversy in Yount v. Denning was before the court a sec ond time, in the case of Denning v. Yount, 62 Kan. 217, 61 Pac. 803, the syllabus of which reads as follows:
“Real-estate agents were denied the right to recover commissions for the sale of land on the ground that their business was carried on in violation of a city ordinance requiring the payment of a license tax, with the provisions of which they had failed to comply. Pending a suit to recover such commissions, the ordinance was repealed, without a saving clause. Held, that the repeal did not act retrospectively, nor did it have the effect of giving validity to a transaction which was unlawful when performed.” (p. 218.)
In the case of Fossett v. Lumber Co., 76 Kan. 428, 92 Pac. 833, the syllabus reads:
“When a person has complied so far as he can with the provisions of an ordinance requiring him to pay an occupation tax, and has tendered the fee and demanded of the proper officer a license, and the license is refused through no fault of his, it is not unlawful for him, without a license, to engage in an occupation, otherwise lawful, which requires no supervision or regulation.” (IT 1.)
In the case of Mayer v. Hartman, 77 Kan. 788, 90 Pac. 807, an ordinance of the city of Kansas -City made it unlawful to engage in the business of jobber or wholesale merchant without having first paid an occupation tax, and the rule of Yount v. Denning was applied.
In the case of Manker v. Tough, 79 Kan. 46, 98 Pac. 792, the ordinance read as follows:
“That on and after the first day of September, 1901, it shall be unlawful for any person or persons, corporation or corporations, to engage in' any of the branches of business or industry, within the corporate limits of the city of Scott City, Kan., set forth in this ordinance, without first having obtained a. license therefor, signed by the mayor and countersigned by the clerk of said! Scott City, Kan., and sealed with the city seal.”
“That the license tax on the following professions and businesses shall be the following amount: . . . Real estate, $4 for the first member and $2 for each additional member of fina per year.
“Any person violating the provisions of this ordinance shall be deemed guilty of a misdemeanor, and, upon conviction thereof before the police judge, shall be fined in a sum not less than five dollars, nor more than fifty dollars.” (pp. 50, 51.)
The statute authorized a license tax on real-estate agents. The plaintiffs w§re real-estate agents, and sued for their commission on a sale of real estate made for the defendant, who invoked the ordinance. It was ■ held the ordinance should be strictly construed. Real-estate agents were not within the letter of the ordinance, and the plaintiffs were permitted to recover. In the opinion the following questions were propounded:
“Why should one party to a contract be allowed to avoid the payment of debts he has contracted to pay, and thus gain an unconscionable advantage, because the other party deliberately, or through inability or mere oversight, has failed to discharge an obligation to the city, when there is available to the city both a civil remedy for the wrong and a penal remedy against the wrongdoer? Was it any benefit to the city in Yount v. Denning, supra, that one party was relieved from paying the other an agreed compensation for services actually rendered, or in Mayer v. Hartman, supra, that one party was enabled to cheat his neighbor out of coal worth nearly $1,000?” (p. 53.)
In the case of Draper v. Miller, 92 Kan. 275, 140 Pac. 890, the ordinance provided that no person, firm or corporation should conduct, pursue, carry on, or operate, in the city of Kansas City, the calling, trade, profession, or occupation of a plumber, without first paying to the city treasurer a license or occupation tax of $7.50 for each six months, and presenting the receipt of the treasurer to the city clerk and procuring a license. A plumber brought an action to foreclose a mechanic’s lien for labor and material. At the time the labor and material were furnished, and at the time the action was commenced, he had not paid the tax. The action was dismissed, he paid the tax, and a new ordinance was passed pardoning violations -of the former ordinance and remitting penalties incurred under it. Afterwards a second foreclosure action was commenced, and the plumber was allowed to recover. It was held the rule announced in Yount v. Denning had become stare decisis, but that it should be restricted, as far as the principle involved would permit. A distinction was made between ordinances requiring a license to protect the public from imposition or incompetency, as, for example, a license ordinance requiring a plumber to take an examination, and ordinances which may be complied with by anybody by paying the tax. In the latter case, the penalty for violating the ordinance is ample substitute for the fee and sufficient to protect the revenue. An act done in violation of such an ordinance is not to be classed as so far criminal or unlawful that no legal right may be founded on it, and the penalty provision should be regarded as imposing a personal disability. This disability may be removed, and if removed, contracts made while it existed may be enforced.
In the case of Simmons v. Oatman, 110 Kan. 44, 202 Pac. 977, the court had under consideration the act of congress levying a special tax on commercial brokers and containing the following provision :
“And every person who carries on any business or .occupation for which special taxes are imposed by this Act, without having paid the special tax herein provided,' shall, besides being liable to the payment of such special tax, be deemed guilty of a misdemeanor, and upon conviction thereof shall pay a fine of not more than $500, or be imprisoned not more than six months, or both, at the discretion of the court. (38 U. S. Stat. 750, 751, 753.)” (p. 48.)
The court referred to Yount v. Denning, and said:
“A distinction is to be noted between that case and this one. There the ordinance in so many words provided that no person should carry on the business without having paid the tax and obtained a license to do so. Here the statute imposes the tax and without in terms forbidding engaging in the taxed occupation prior to paying the tax provides a penalty for such conduct, characterizing it as a misdemeanor. The ordinary rule of course is that to penalize an act is to render it illegal and incapable of forming a valid consideration for a contract. (13 C. J. 421.) This is universally so when the prohibition is in the nature of a police regulation for the general protection of the public morals or welfare. But the question is always one of legislative intent, and the modern- and more reasonable view appears to be that ‘if the penalty is imposed for the protection of the revenue, it may be presumed that the legislature only desired to make it expensive to the parties in proportion as it is unprofitable to the revenue, and that their contracts are not void.’ [Authorities.]” (p. 48.)
The foregoing review of the decisions discloses that, in every case in which the doctrine of Yount v. Denning has been applied, the ordinance.made it unlawful to engage in business before paying the tax. The doctrine was always of doubtful soundness. Its application has always produced results not pleasant to contemplate, and the disposition of the court, uniformly manifested, has been to restrict, and not to extend, its application. The ordinance of the city of Harper departs from the ordinance of the city of Winfield, considered in Yount v. Denning, even more than the congressional act, considered in Simmons v. Oatman. It does not, in terms or by necessary implication, make it unlawful for a lumber and coal dealer to sell his wares in case of omission to pay the tax; the penalty is imposed for neglect to pay the tax before engaging in business and, paraphrasing the concluding portion of the opinion in Simmons v. Oatman, by weight of more recent authority and by the better reason, the fact that the plaintiff had not paid its $10 license fee is not available to the defendant to defeat an otherwise valid lien for material furnished to improve his property.
The judgment of the district court is reversed, and the cause is remanded for further proceedings. | [
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The opinion of the court was delivered by
BurCH, J.:
The action was one for compensation. The plaintiff had settled with the defendant, and had given a release. It was alleged the release was given under a mutual mistake óf fact, and a part of the relief prayed for was that the release be canceled. A demurrer to the petition was overruled, and the defendant appeals.
The portion of the petition against which the demurrer was directed reads as follows:
“Plaintiff further states that at the time of the execution of said release, there was a mutual mistake of fact made by the plaintiff and defendant as to the real character and extent of plaintiff’s existing injuries; that said right foot was bruised, mashed, mutilated, and lacerated, and the skin, flesh, muscles, tendons and ligaments thereof, and also fractured, broke and injured some of the bones of said right foot, and that said injured foot at said time showed superficial indications of healing, and said plaintiff and defendant were mutually mistaken and did not believe plaintiff’s injuries were of a serious and permanent character; that by reason of the presence and 'indications of superficial and temporary healing of said injuries, the plaintiff and defendant believed the plaintiff’s existing injuries at that time were of a minor and insignificant nature, and he would be able to go to work shortly thereafter, and the defendant therefore paid the plaintiff accordingly; plaintiff further states that his injuries were at the time of the execution of said release of a serious, permanent, and lasting nature, and that the consideration paid plaintiff by the defendant was grossly inadequate.”
It is said recitals of the release control allegations of the petition. The release contains the following statement:
“I further state that no false statements of any kind were made to me and no inducements held out to me, - and I rely on no statements whatever in making this release, and especially state that I do not rely on any statements made to me by any physician or surgeon concerning my condition.”
This statement is perfectly compatible with mutual mistake respecting the plaintiff’s physipal condition at the time the statement was made and at the time the release was executed.
Appended to the release is the following - statement, signed by two persons other than the plaintiff:
“We hereby certify that the above and foregoing agreement was read to David A. McCroskey in our presence, and that he signed it in our presence, and he stated in our presence that he understood the conditions of said agreement and the statements contained therein.”
This statement refers to conditions of a written instrument, and not to physical .condition of the plaintiff’s foot, and so does not contradict the petition.
It is said mutual mistake is not sufficiently pleaded because conclusions of fact are stated instead of facts warranting the conclusions, and because the petition is not extended to embrace certain allegations which the defendant deems material. It is not necessary to reproduce here the defendant’s analysis of the pleading.
In this state a pleading is regarded according to its true purpose of fairly apprising the adversary of what the claim will be. Even as against a motion to make definite and certain, a pleading will be deemed sufficient which renders the nature of the charge apparent. (Republic County v. Guaranty Co., 96 Kan. 255, 150 Pac. 590.) In the absence of a motion to make definite and certain, a petition will be liberally construed when attacked by demurrer. (Balmer v. Long, 104 Kan. 408, 179 Pac. 371.) Mere generality of state ment will not render a pleading demurrable. (Gano v. Cunningham, 88 Kan. 300, 128 Pac. 372.) While general allegations of fraud and illegality and statements of legal conclusions are insufficient, statements of conclusions of fact are good as against a demurrer. (Gano v. Cunningham, 88 Kan. 300, 128 Pac. 372; Neosho County v. Spearman, 89 Kan. 106, 130 Pac. 677; Kirkland v. Railway Co., 104 Kan. 388, 179 Pac. 362.)
Tested by the foregoing rules, the petition clearly states a cause of action for cancellation on the ground of mutual mistake of fact. The mistake relates to the true character and extent of the plaintiff’s injury. The injury is fully described. At the time the release was executed there were superficial indications of healing. The plaintiff and the defendant believed the injury to be of a minor and insignificant nature, and believed the plaintiff would soon be able to resume work. The defendant paid the plaintiff accordingly. The injury was in fact of a serious and permanent character, and the consideration for the release was grossly inadequate. .
The judgment of the.district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered judgment granting her a divorce from the defendant and- giving to her $300 alimony. She appeals from the judgment for alimony.
The plaintiff’s evidence tended to show that the defendant owned property valued at somewhere between $12,000 and $15,000, but the defendant’s evidence tended to show that his property was not worth either of these amounts, although from defendant’s evidence it can be gathered that his property was worth from $6,000 to $8,000. The plaintiff and the defendant were married on December 30, 1918, and they lived together until September ■ 30, 1920, when they separated. The plaintiff had about $1,300 in money and bonds when the parties were married, and that money and bonds she took with her at the time of the separation.
The only question discussed is: Was the award of alimony so small as to show an abuse of discretion on the part of the trial court? Section 673 of the code of civil procedure reads in part:
“When a divorce shall be granted by reason of the fault or aggression of the husband, the wife . . . shall be allowed such alimony out of the husband’s real and personal property as the court shall think reasonable, having due regard to the property which came to him by marriage and the value of his real and personal estate at the time of said divorce.”
In Johnson v. Johnson, 66 Kan. 546, 548, 72 Pac. 267, the court used the following language:
“In awarding alimony and in the adjustment of financial matters as between divorced parties, no little latitude is allowed to the court in the making of its decree. The statute requires that such alimony be allowed as the court shall think reasonable. The adjustment of the matters involved is within the discretion of the court. The judge is required thoroughly to inform himself with respect thereto. The order proper to be made depends upon the circumstances of each case. The financial ability of each of the parties, including liabilities, should be taken into consideration and in a measure provided for.”
In Miller v. Miller, 97 Kan. 704, 156 Pac. 695, this court said:
■ “Before a judgment awarding alimony will be reversed it must appear by all the circumstances surrounding the parties to the action that the trial court abused its discretion in determining the amount.” (Syl.)
We quote from Deeds v. Deeds, 108 Kan. 770, 773, 196 Pac. 1109, as follows:
“In Packard v. Packard, 34 Kan. 53, 7 Pac. 628, it was said that as the divorce to the wife was granted by reason of the fault and aggression of the husband she should be allowed such alimony as would maintain her and her children in as good condition as if she were still living with her husband. In Leach v. Leach, 46 Kan. 724, 27 Pac. 131, where thg divorce was granted to the husband for the fault of the wife, and he had property worth from ten to fourteen thousand dollars, and owed about $500, and he was required to pay all the costs and support all of the children, five in number, it was held that the award of $2,500, in addition to certain personal property, was not erroneous. It was said in the opinion that ordinarily $2,500 or $3,000, out of an estate worth from $10,000 to $14,000, would be too small, but in this case it was probably right, and at .most this court could not say that the court below should grant her any larger sum.”
Following the rule declared in these cases, this court is forced to the conclusion that the alimony awarded to the plaintiff was wholly inadequate and disproportionate to the property owned by the defendant. For that reason, the judgment must be modified, or a new trial must be granted.
The cause is remanded to the trial court with directions to grant a new trial unless the defendant will consent that judgment be entered against him for $1,000 alimony. | [
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The opinion of the court was delivered by
Poeter, J.:
Disbarment proceedings were brought against George W. Staton, a member of the bar, whose residence is Baxter Springs. The accusation charged that on July 11, 1921, he willfully and maliciously offered and attempted to exchange a certain bottle, in which he had placed a smaller bottle containing a twenty-dollar bill, for a bottle then held by Charles Upson, city marshal, A. R. Weaver, policeman, and Turner Hendren, a special officer of the city of Baxter Springs, representing to them that the bottle he had contained more “kick” than the bottle they had, which they claimed held intoxicating liquor and which they were holding in their custody as evidence in the trial of the case of The State v. W. L. Blair, wherein Blair was charged with having intoxicating liquor in his possession in violation of law, the case then pending in justice court / that in pursuance of his unlawful attempt the accused succeeded in placing the bottle in the hands of Charles Upson, city marshal, but was prevented from obtaining possession of the bottle containing liquor by the officers, who returned the, twenty-dollar bill to him.
Another accusation charged him with deceiving the district court willfully arid maliciously and in violation of his oath of office and his duties as an attorney at law, in knowingly misrepresenting and attempting to mislead the court as follows:
In April, 1921, in a case pending in that court wherein he was an attorney for one party he caused to be issued a subpoena for one Art Nichols, a witness who demanded payment of his witness fees and mileage. The officer who served the subpoena immediately communicated this fact to the accused, but when the case was called for trial the accused asked for the issuance of an attachment for the witness and for a continuance of the case on account of the absence of the witness. The court inquired about the matter, and the accused presented the return, which failed to show a demand for witness fees, and pretended that his only knowledge on the subject was the officer’s return. The court, hearing rumors that demand had been made for witness fees, investigated the matter and learned the truth, and when the court confronted the accused with the facts he made no denial of his knowledge concerning them.
The complaint against the accused was sworn to by E. B. Morgan of Galena, a member of the bar.
The substance of Upson’s testimony is:
With the assistance of Hendren he arrested Blair on a liquor charge and seized some liquor. Blair inquired about attorneys and the witness recommended Geo. W. Staton. Hendren took Blair to Staton’s office. Upson got word that Staton wanted to see him and went to the office. Staton said: “I got some stuff here that I will trade you for that stuff down there.” Upson replied: “There is nothing doing George, what are you talking about?” Staton said: “This.,stuff is a whole lot better than what you got.” Staton “had a square bottle with a pill bottle inside. . . . and something green inside of that. I said: ‘Let me smell of it.’ He grabbed it away and would not let me take the cork out of it.. I supposed it was some strong stuff, and we was always jollying around. He laid it down and said, ‘You will not trade,’ and I said, ‘No, I know what I got.’ ” Later in the evening Upson, Hendren and several others were standing in front of the drug store talking with the accused, who had a bottle in his hands. Upson grabbed it, and the accused said: “There is a good drink in there for you and Turner anyway.” “I said, ‘‘Well we will go down and take a shot.’ We went down to the station and broke the bottle and there was a twenty-dollar bill in it. I put it away in the locker.” About ten o’clock that night the accused called him over the telephone. “He and Turner had had some words on the street and he wanted to come down and see what I thought about it. . . . He thought Turner was accusing him of bribing, I did not feel that way about it at that time myself. . . . He wanted me to try to get Turner to think different. Turner would keep saying that it was a case of bribery.” The following morning witness gave the bottle back'to Staton and said: “Here George the rest of them don’t seem satisfied with this I will give it back.” The accused said: “If you feel that way about it I will accept it.” “I said, ‘That is the way the others feel, and if they do, I do, too.’
“Q. What do you mean by that? A. That they felt we had no right to it.
“Q. And did you give it back for that reason? A. Yes, sir.”
Policeman Hendren testified in substance as follows:
WTien Blair was arrested he wanted to get an attorney and suggested that he be taken to Galena to see Mr. Morgan. The witness told him that Staton was a pretty good attorney and would handle the case cheaper than Morgan because' he was right there. At Blair’s request he took him to Staton’s office and left the two together. Shortly after, the three went in Staton’s car to Blair’s residence, where the Blairs put up a victrola and two diamonds as security for Staton’s fee. In the car Staton said: “You don’t know' that is whisky in that bottle?” “I said, ‘Don’t I.’ He said, ‘No, you don’t; it may be water. ... I got a bottle in my office that has more kick in it' than that and I would trade it to you and you would have a real case.’ ” The witness thought at first he was joking. When they reached Staton’s office he said again, “I have got a bottle upstairs, I am sure it is in my office right now, with more kick in it than this.” Hendren became angry and said, “George you know, if you mean anything by that, that I don’t do that kind of business.” Later in the evening he was on the street where Upson and the accused were talking. Staton had the bottle in his hands, “a small-like bottle, and they were talking, first about one thing and another. . . . After that I noticed Upson put his hand out, and George (Staton) let loose of the bottle and said, 'all right I want you and Turner to have that. ... I want you to split that, it may turn yellow but it is good stuff.’ ” At the police station, in the presence of Upson, he opened the bottle, “pulled out the cork and there was a twenty-dollar bill in the smaller bottle.” The bottle was broken. That night he met Staton and asked him “what right he had to think he could buy me for ten dollars. He said he didn’t know he was trying to buy me. I said it looked that way to me.”
The accused testified that he was thirty-three years of age, born in Cherokee county; had attended the State University for five years, a year in the State University of California and one year in the University of Nebraska. He was admitted to practice in 1917.
Respecting the first charge, he testified that when Hendren met him on the street and said he had arrested a man and was going to bring him to his office, he was then on his way home and had purchased, with other groceries, a bottle of grape juice. He went back to his office to wait until Blair came with Hendren. In his car with Hendren and Blair he asked Hendren if he thought he had a case against Blair. Hendren said he had about a peck of mash and a bottle of whisky. He replied: “As far as your mash is concerned I would not give two whoops for it, . . . and as far as the whisky is concerned, I have a bottle in my office with twice as much kick in it as the bottle you took off this man here.” He says he was referring to the bottle of grape juice Hendren had seen him carrying to the office. He asked Hendren to send Upson to his office as he wanted to talk to him about some other matters. While waiting for Upson, he got to thinking of the various favors Upson had done for him “serving papers for small fees; arising from bed at defendant’s request to catch parties before they left town; getting quick service on others that would have left town; and making thorough search for judgment debtor’s property that would not have been found otherwise.” He thought also ,of the fact that Blair had told him that Hendren had spoken well of him as an attorney and had sent Blair to him; and he “thought that it would be an appropriate gift now, the case I had just received being a liquor case. I decided to fix up a liootch bottle, so I went to the drug store and obtained a small bottle and a small vial, not stating to him (the druggist) what I had planned for fear he would tell it to the officers before I had time to express my appreciation. When the constable came to the office, I was just finishing the preparation of the bottle. ... I stated to Upson that I was preparing a gift for him, and he seemed dubious, and he thought I was springing a joke on him, and laid it down again as he went out so ... I started out to find him.” On the street that evening he talked with Hendren about the good case that had been sent to him and he expressed his appreciation. He said: “I take it that both of you sent Blair to me, and I never asked that Charlie ever send any business to me. Charlie said that he had sent this to me for the sole reason that he liked me and the way I practiced law; and I then stated, ‘I want you men to know that I appreciate all that you have done for me.' Therefore in the bright light of this drug store with several men still hanging around . . . I drew the fatal bottle from my pocket. I held the small bottle up in a joking attitude. . . . Charlie grabbed me himself, and took the bottle away from me in his own hands, and in a boisterous, laughing voice said, ‘another booze case, here is a hootch bottle, I guess we had better take you with us;’ so I said, T better not fight you; you just take that, Charlie, and have a snort of it, and give Hendren a shot of it, then remember I am not such a cheap skate after all.’ ” He denied that there was anything said about evidence possessed by the officers. He admitted that in ten minutes Upson came back and asked him what he meant by the bottle, and he repeated his statement that it was a gift in remembrance of the many past favors and said that if he (Upson) didn’t think he could accept it, he could return it then. When Upson told him what Hendren said about the attempted bribe he said: “I never gave you the bottle, you took it away from me.” Upson replied: “That is right.” And Staton said: “How could I bribe you if you took the bottle away from me?” Upson said that he didn’t feel that Staton was trying to bribe anyone, but that Hendren was insisting that that was what he intended, and Upson wanted to let Staton know how Hendrfen felt. When Hendren afterwards accused him of attempted bribery he said; “I never gave this bottle to you, Hendren, and you are male- ing charges to me that don’t sound good.” The next day he saw Upson and said to him, “Charlie after the incident last night I am of the opinion that Hendren doesn’t want to accept any favors from me, and after he has bawled me out on the street like he had, I certainly don’t feel or intend for him to reap any of the benefits of what I intended for you.”
On the charge of attempted bribery the commissioner recommends that the accused be reprimanded for his conduct in presenting money to Charles Upson and Turner Hendren and that the proceedings be dismissed. The accused filed a motion to confirm the findings of fact and conclusions of law of the commissioner and for a dismissal of the accusation. The board of law examiners filed a motion to set aside the commissioner’s findings of fact and conclusions of law and for judgment disbarring the accused on the record.
At the July session the court made an order setting aside the findings of fact and conclusions of law and suspended George W. Staton from practicing law for a period of one year.
In his answer and testimony the accused claims that the charges against him are the result solely of personal animosity toward him and professional jealousy on the part of the attorney who filed the accusation. He claims that on one occasion while in the office of Mr. Morgan the latter cursed him and threatened him with personal violence; that at another time in a telephone conversation the same thing occurred; that in the court room on several occasions when they were opposing counsel the accused had been reprimanded by the court for the language used toward him. His testimony is that the two' charges in the accusations passed upon by the commissioner, as well as another charge (upon which no testimony was received), grew out of litigation in which he and his accuser were on opposite sides, and that, following the bottle incident, Blair discharged him as attorney in the liquor case, without settling with him for his fees, and employed Mr. Morgan.
The case is one of grave importance to the legal profession, to the courts and the public. The court will not concern itself nor take into consideration evidence of the motives that may have induced the filing of the disbarment proceedings, except as such evidence may tend to throw light upon the truth of the accusations. The attorney who filed the charges was a witness before the commissioner, but testified only with respect to the second accusation, stating what he says is his recollection of what occurred in court when the at tachment was asked for the absent witness. His testimony does not differ materially from that of Judge Boss, except that the latter was unable to recall any affirmative statement by the accused to the effect that the witness had not demanded his fees.
We shall take up first the charge that the accused attempted to procure the continuance of a cause and the issuance of an attachment for an absent witness, knowing the witness fees had been demanded and not paid. On this charge we approve the commissioner’s findings of fact and conclusions of law.
The accused admitted that he was careless in that matter and gave a plausible explanation of his failure to be impressed with what was said to him by the officer who served the subpoena. The court at the time apparently felt obliged to accept the explanation given by the accused. There was, perhaps, more 'than mere carelessness, indifference, or a failure to appreciate the responsibilities that always rest in such circumstances upon an attorney, and which require him to be perfectly candid 'and frank with the court, and to know the facts whereof he speaks. The' commissioner adopted, and we adopt, the recommendation of the learned judge of the district court, when testifying before the commissioner — that in view of the ' youth and inexperience of the accused, his explanation be accepted.
Upon the more serious charge of attempted bribery of an officer, the commissioner, while unwilling to absolve the accused from blame, was apparently impressed with his youth and inexperience and his ignorance of what is required of an attorney, his natural disposition as shown by the testimony to be “smart,” to act foolish, and to seek notoriety by “stunts” involving practical joking; and the commissioner finds that the accused did not, as charged, attempt directly or indirectly to bribe the officers or either' of them, but that he did give and present to Charles Upson and Turner Hen-dren, $20, “in the form of a twenty-dollar bill, for services rendered in serving papers in cases in which said George W. Staton was interested, and for sending him legal business; that the acts and conduct of said George W. Staton in relation to said charge were- eccentric, out of the ordinary, and probably in violation of rule 28 of the'code of ethics, but his acts and conduct in that regard did not involve moral turpitude and no evil or wrong was intended thereby.” The commissioner recommends that the charge of attempted bribery be dismissed, but that George W. Staton be reprimanded for his acts and conduct in presenting the money to the officers.
We are compelled to take a different view of the matter, especially of the testimony of the officers themselves as well as the admissions of the accused. Officer Hendren, recalling the efforts made by Staton to secure an exchange of his bottle for the bottle containing the intoxicating liquor taken from Blair, understood the purpose of the gift from the first, notwithstanding the camouflage of hiding the twenty-dollar bill in the bottle Staton had fixed up with so much care. Upson’s evidence shows that he was doubtful about the propriety of the gift and had to seek reassurance from Staton to the effect that the purpose was only to show that Staton was not a “cheap skate,” and appreciated the favors shown him by sending him legal business:
But aside from this, the accused, in seeking .to avoid the charge of bribery of an officer, sets up as a defense facts which of themselves are sufficient to justify his disbarment. Apparently he overlooked, if he ever read, rule 28 of the code of professional ethics adopted by the American Bar Association and the bar association of this state, approved by this court (Judy & Gilbert v. Railway Co., 111 Kan. 46) and published on the first page of the monthly bar docket for the past two years and which has appeared in the front pages of volumes 107,108 and 110 of the Kansas Reports.
We quote from rule 28 as follows:
“It is disreputable to hunt up defects in title or other causes of action and inform thereof in order to be employed to bring suit, or to breed litigation by seeking out those with claims for personal injuries or those having any other grounds of action in order to secure them as clients, or to employ agents or runners ¡or like purposes, or to pay or reward, directly or indirectly, those who bring or influence the bringing oj such cases to his office or to remunerate policemen, court or prison officials, physicians, hospital attaches, or others who may succeed, under the guise of giving disinterested friendly advice, in influencing the criminal, the sick and the injured, the ignorant or others, to seek his professional services. A duty to the public and to the profession devolves upon every member of the bar, having knowledge of such practices upon the part of any practitioner, immediately to inform thereof, to the end that the offender may be disbarred.”
We have not been impressed by the voluminous answer filed by the accused in an attempt to explain his action in connection with this charge. It is largely made up of irrelevant matter and recriminations of his accuser and the witnesses,' some of them his former friends, including the officers who gave testimony against him. His answer to this charge is neither ingenuous nor frank. His answer and admissions on the witness stand amount to a confession that he was attempting to give the $20 to Upson, with instructions to divide it with Hendren for their services in sending Blair to him as a client in the liquor case.
The ground upon which the court ordered the accused suspended for one year was not that his conduct is condemned by the code of ethics but because such conduct upon the part of an attorney is morally reprehensible.
The order therefore is that he be suspended from practice as an attorney for one year. | [
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The opinion of the court was delivered by
Marshall, J.:
This case is connected with No. 23,511, The Douglass Hospital and Training School for Nurses v. G. A. White, reported in 110 Kan. 498, 204 Pac. 688, and post, p. 465, under the title of Training School v. White. The facts are shown in those opinions, and it is not necessary to restate them.
One of the questions for determination is: Was the answer of the Hospital and Training School in the foreclosure action sufficient? White and the board of county commissioners contend that it was not. The statute which permits a defendant served by publication to open up a judgment is section 83 of the code of civil procedure, and in part reads:
“A party against whom a judgment or order has been rendered, without other service than publication in a newspaper, may, at any time'within three years after the date of the judgment or order, have the same opened, and be let in to defend. Before the judgment or order shall be opened the applicant shall give notice to the adverse party of his intention to make such an application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and to make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; but the title to any property, the subject of the judgment or order sought to be opened, which by it, or in consequence of it, shall have passed to a purchaser in good faith, shall, after expiration of six months, not be affected by any proceedings under this section.” (Gen. Stat. 1915, § 6974.)
The statute providing for redemption of real property from a judgment foreclosing a tax lien reads as follows:
“Any person interested in said land, lot or piece of real estate as owner or mortgagee may, before the day of sale hereinafter provided for, pay to the clerk or sheriff holding the order of sale the amount of the lien as determined by the order and judgment of the court, with interest thereon at twelve per cent from the date of judgment, with a proportionate share of all cost and accrued costs, which payment shall be a full satisfaction and redemption of such land, lot or piece of real estate from the lien fixed by the order and judgment of the court and stay all further proceedings for the collection of such lien as against the particular land, lot or piece of real estate so redeemed; and the treasurer of the county, upon presentation of a certificate from the clerk of the district court showing such payment, shall, on payment to him of all taxes due by reason of subsequent levies, not included in the decree and judgment of the court, issue a certificate of redemption therefor. (Gen. Stat. 1915, § 11478.)
Probably the only defenses that can be set up in an action to foreclose tax liens held by a county are that the property was not subject to taxation; that the taxes, or some part of them, were illegal; or that the taxes had been paid. It may be conceded that, under section 11478 of the General Statutes of 1915, the property owner has the right to pay to the clerk or sheriff the amount of the lien as determined by the judgment with interest and apportioned costs, and that if the clerk or sheriff refuses to accept that amount if tendered, the sale will be set aside and the property be redeemed. However, under the statute, that must be done before the sale. The answer tendered the taxes, interest and costs, at the time it was filed, but did not allege that they had been tendered to the clerk or the sheriff before the sale. Nothing was alleged that would have defeated the foreclosure action or any part of the taxes on which that action was based or that would .have prevented the sale. The answer was not sufficient to compel the trial court to open the judgment and let the Hospital and Training School defend. In Williams v. Kiowa County, 74 Kan. 693, 88 Pac. 70, an action to foreclose tax liens, this court said:
“An answer filed in connection with an application to open a judgment rendered without other service than by publication must be full and complete as a pleading by the defendant in the cause. It need not present a defense coextensive with the entire demand, or with every demand, of the petition, but whatever defense it proposes must be complete and perfect in the sense of fully overcoming the portions of the plaintiff’s claim against which it is directed; and it must subvert sufficient of the cause of action set forth in the petition to make it worthy of consideration in the doing of substantial justice between the parties.” (Syl. ¶ 1.)
This disposes of the case and makes it unnecessary to pass on the other question presented.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Maeshall, J.:
The plaintiff commenced this action to recover damages from the defendants for their wrongful acts in compelling the plaintiff to separate from her husband and to leave his home, and for alienating his affections. The action was tried only as between the plaintiff and the defendant Myrtle Gooch. Judgment was rendered in favor of the plaintiff, and Myrtle Gooch appeals.
1. The principal question argued is that the plaintiff’s cause of action, if she had any, was barred by the statute of limitations at the time the action was commenced, on April 16,1918. This question was presented to the trial court by demurrer to the petition, by demurrer to the evidence of the plaintiff, by requested instructions, and by a motion for a new trial.
The plaintiff and J. F. Gooch were married in March, 1915, and in October of that year they went to his home in Sumner county to live. He had been married before, and the defendant Myrtle Gooch, his daughter, had been keeping house for him since the death of his former wife. When the plaintiff and her husband went to the home of the latter, Myrtle Gooch immediately stated her objections to the marriage of the plaintiff to J. F. Gooch, and continuously thereafter, until the separation of the plaintiff and J. F. Gooch, mistreated the plaintiff by constantly quarreling with her and often telling her she had to leave. Myrtle Gooch told her father that the plaintiff-was not a fit person to be his wife and that he had to get rid of her. After a number of weeks, J. F. Gooch began to treat the plaintiff coldly, and on various occasions told her that she had to leave and get a divorce or that he would. On the night of April 15, he told her that she must leave. She left on April 16, 1916, and went to Wichita. A few days later, she attempted to have a long-distance telephone conversation with J. F. Gooch but, according to the' findings of the jury, was prevented from doing so by Myrtle Gooch. The jury answered special questions as follows:
“1. Did the defendant Myrtle Gooch do any act after the 15th day of April, 1916, which in any manner alienated the affections of J. F. Gooch for the plaintiff? Ans. Yes.
“2. If you answer the foregoing question in the affirmative state what act or acts Myrtle Gooch did after said date. Ans. Interfering in telephone conversa- * tion and continuously exerting her influence with J. F. Gooch against the plaintiff.
“3. Were the affections of J. F. Gooch for the plaintiff, if any, alienated before the 15th day of April, 1916. Ans. Both before and after.”
The plaintiff testified that J. F. Gooch had ceased to have any affection for her before she left and went to Wichita. The defendant contends that this action, being one for damages on account of alienation of affections, accrued when the affections were alienated. That is not all there is to the action. The petition alleged and the evidence tended to prove that there was a deliberate purpose and effort on the part of Myrtle Gooch to-separate the plaintiff and J. F. Gooch. Those efforts continued until a separation was effected; and, according to the evidence and the findings, those efforts continued after the separation. This action is one against the defendant for damages caused by her wrongful conduct in bringing about that separation. Lawsuits of this kind are known as actions for damages for alienation of affections, but that is not necessarily the nature of the actions. They are for damages for loss of consortium. A husband and wife may live together and have little or no affection for each other, but a person who causes one of the spouses under such circumstances to leave the other is liable in damages for the injury caused by the separation, notwithstanding the fact that no affection existed between the two. In the present case, a cause of action accrued when the plaintiff left her husband. (Bockman v. Ritter, 21 Ind. App. 250; Farneman v. Farneman, 46 Ind. App. 453, 457.) The action was not barred by the statute of limitations at the time is was commenced. (13 R. C. L. 1463; Note, Ann. Cas. 1912 C, 1183.)
2. Defendant Myrtle Gooch filed a motion to set aside the answers to the first and second questions submitted to the jury. That motion was denied. It is argued that there was no evidence to sustain those answers. The plaintiff testified that after she went to Wichita she attempted to talk to her husband over, the long-distance telephone but was prevented from so doing by Myrtle Gooch. The evidence of the plaintiff was- sufficient to sustain the answers to those questions.
The judgment is affirmed. | [
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The opinion of the court was delivered by
DawsoN, J.:
The plaintiff brought this action for compensation for the death of her husband, an employee of the defendant company, who, as she alleged, became overheated on a warm afternoon while hauling ashes from defendant’s smelting plant, and who while so overheated drank ice water and was'Seized with acute congestion and died the same afternoon.
The evidence tended to show these facts. The arbitrator found that the defendant and its deceased employee were working under the compensation act; and—
“III. That the employment of the said S. H. Gilliland required him to use a one-horse cart, which he shoveled full of cinders and hauled several yards to the dump; that the cinders were shoveled into the cart by hand, and that the cinders were warm and sometimes hot.
“IY. That the 3d day of May, 1920, was on Monday; that it was a warm day for the time of year. ...
“V. That the place where the cinders were loaded was on the west side of some tall furnace buildings, in full glare of the sun, and that just inside each furnace building and. at easy access to the employes was a fountain for drinking containing ice cold water.
“VI. That on Monday, May 3d, 1920, S. H. Gilliland worked all day until he was stricken about four o’clock in the afternoon; that about two-fifteen (2:15) o’clock in the afternoon, he was seen to enter the furnace building for water, but there is no evidence that he had, or had not, entered the building for water thereafter, and prior to his being stricken.
“VII. That about four o’clock of said day, Gilliland was seen to be acting queerly; that he seemed weak, and unable to lift 'the shovel; that he complained of being sick; that after loading his cart, in attempting to climb upon the cart, he fell down between the horse and cart; that he climbed on the cart and started to drive toward the dump when he fell back on the cinders, unconscious, and so remained until his death, which occurred in about one hour after he was stricken.
“VIII. That Dr. Seacat, a regularly practicing physician, in the employ of the defendant company, was called; that Dr. Seacat arrived at least thirty (30) minutes before Gilliland died, examined and treated him in one of the defendant’s buildipgs at the plant where Gilliland worked; that in the opinion of Dr. Seacat, Gilliland died from ‘congestion, or distention of the vascular system — the filling up of the veins, and probably the surface arteries, áue to a constriction of blood vessels of the .vital organs, produced from the shock due to talcing cold water into an overheated system’; that the evidence, though partially circumstantial, fairly establishes the fact that the deceased died from said cause so induced.”
On these findings, the arbitrator’s and trial court’s conclusion of law was that the plaintiff’s husband had “died from an accident arising out of and in the course of his employment,” and judgment was entered accordingly.
Defendant challenges the correctness of this judgment. Among the precedents relied on defendant- cites Cox v. Refining Co., 108 Kan. 320, 195 Pac. 863, 19 A. L. R. 90 and note, 95-107, where a workman in the course of his employment was seized with a periodically recurring epileptic fit which caused him to fall and injure himself. Compensation was denied, but there the injury was not due to his employment; it did not arise out of his employment nor because of it. The court said:
“Cases there are too, many of them, where workmen by reason of constitutional infirmities are predisposed to sustain injuries while engaged in their labor, yet the leniency and humanity of the law permit them to recover if the employment itself contributes in some degree to bring about or intensify the physical condition which renders them susceptible to such accident and consequent injury. But in all such cases the employment must have some definite, discernible relation to the accident. ...
“In this case if the added factor of his labor had aided in provoking the epileptic fit, it would bring the present case within the rule, and we would not hesitate to say that there was an accident arising out of the employment. But here there was no factor inherent in the employment or arising out of it which can be characterized as an accident which can be added to the disease as a contributing cause of plaintiff’s injury.” (pp.> 324, 325.)
Here there was the added factor of the overheating, traceable to the workman’s task of shoveling warm ashes on that unusually warm afternoon, and this brought about the condition which gave such sudden and fatal effect to the drinking of the ice water. This justified the trial court’s conclusion that within the scope and intent of the workmen’s compensation act the plaintiff’s husband’s death was caused by an injury arising out of his employment-as well as in the course of it.
There is, however, in this case a precautionary matter which needs attention. The deceased workman is survived by two'minor children whose interest must be protected, and it is also important that the defendant be assured that the payment of the statutory compensation and judgment will protect it from further claims on behalf of these minors.
The trial court ruled:
“3. That a guardian of the persons and estates of said minors, Glen and Delbert Gilliland, should be appointed, and the above compensation be paid one-half to the plaintiff, Lizzie E. Gilliland, and one-half to the guardian of the said minors, to be used for their care, support, and education.”
Until some such procedure as that suggested by -the trial court is followed, the defendant need not pay the judgment in full. For the present, the satisfaction of that part of the judgment separately decreed to the plaintiff herself is sufficient; and the remainder can await such disposition of the cause as will protect the interests of the minors and protect the defendant from further demands on their behalf. Thus modified the judgment will be affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Plaintiff is a corporation engaged in the business of furnishing printing, binding, stationery and office supplies, and employs in its business many persons in various capacities. On May 2, 1921, the printers, binders and persons employed in various printing establishments in Topeka, including that of plaintiff’s, declared a strike and quit work by reason of a controversy between them and their employers involving hours of labor. Following the strike, plaintiff continued to operate its business and to carry out its contracts with its numerous customers, employing other workmen to take the places of those who voluntarily quit its employ. Alleging that many of the employees who went on the strike, and particularly the defendants named, were pursuing a course of conduct which would result in serious and irreparable damage to plaintiff by attempting to intimidate and frighten its employees, causing many of them through fear and annoyance to stop work, this action was brought to enjoin defendants from continuing such unlawful conduct. The appeal is from an order overruling defendant’s demurrer to the petition.
The first contention raised by the appeal is that the petition fails to show that plaintiff has legal capacity to maintain an action in Kansas. The petition alleges that plaintiff is a corporation duly incorporated under the laws of the state of Arizona, and doing business here. None of the three cases cited in support of this contention are in point. The exact question has been determined adversely to defendants in Northrup v. Wills, 65 Kan. 769, 70 Pac. 879. In that case the petition alleged that plaintiff is “a corporation duly chartered, organized and existing under and by virtue of the laws of the state of Texas.” (p. 770.) Nothing was said respecting any authority to do business in Kansas. It was not only held that the demurrer was properly overruled, but that the burden of proving that the requisites had not been complied with rested upon the party asserting the negative, for the reason that the statements filed and acts performed by a corporation necessary to entitle it lawfully to engage in business are made and kept in a public office. That decision was followed in Leonard v. Steel Co., 73 Kan. 79, 84 Pac. 553, which cited in the opinion, with approval, Jordan v. Telegraph Co., 69 Kan. 140, 143, 76 Pac. 397, where it was said:
“The petition, discloses that the plaintiff was a foreign corporation, but does not disclose that it had not complied with the requirements of the chapter cited. This was defensive matter, and to be availed of should have been pleaded.”
In the present case, the brief of defendant cites Colean v. Johnson, 82 Kan. 655, 109 Pac. 403. That, however, was an action in replevin, and because the rule is that in replevin any defense whatever may be proved under a general denial, it was held that the defendant may defeat a recovery by showing that plaintiff is a foreign corporation without authority to carry on business in this state. But even in a replevin action such a defense could not be raised by a demurrer to the petition. It would have to be pleaded, but a general denial would raise it.
Another contention is that the petition does not state a case falling within section 7149, General Statutes of 1915, under which this action was brought. That section provides: .
“That no restraining order or injunction shall be granted by any court of the state of Kansas, or a judge or the judges thereof, in any case between an employer and employee, or between employers and employees, or between employees, or between persons employed and persons seeking' employment, involving or growing out of a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property or to a property right of the party making the application, for which injury there is no adequate remedy at law, and such property or property right must be described with particularity in the application, which must be in writing and sworn to by the applicant or by his agent or attorney.”
The petition here alleges that plaintiff has no remedy at common law for the reason that the defendants are not financially responsible; in the same connection it alleges that the injury plaintiff suffers and will suffer at their hands is irreparable in its character and can only be prevented by the equitable action of the court. The petition alleges that the defendants, conspiring and cooperating together as well as acting individually, have placed themselves about the premises of the plaintiff and trespassed thereon and upon the sidewalks in front of its place of business, congregating at times in numbers of more than one hundred; that they have attacked, annoyed, insulted, and interfered with plaintiff’s employees, many of whom are in constant fear of violence and injury from the defendants, who have repeatedly called the employees of plaintiff “scabs,” “rats,” and other insulting and abusive names; and have interfered physically .with the ingress and egress of plaintiff’s employees to and from the plaintiff’s building.
It appears from the averments of the petition that some of plaintiff’s employees are former members of unions and that others are persons who have sought employment with plaintiff. The petition alleges that the defendants have assailed plaintiff’s employees with covert threats implying violence, “in that they have stated in a frightening tone of voice” that if plaintiff’s employees did not quit their jobs they would wish they had, and would regret remaining with plaintiff as employees; that defendants are systematically, collectively and .individually engaged in such conduct; that this conduct on the part of the defendants tends to demoralize plaintiff’s employees, reduce their efficiency as employees, and injures plaintiff in.getting out work which its employees have been hired to perform, and to delay plaintiff in completing and making delivery under its contracts .with the public. These averments are sufficient to show that the plaintiff has no adequate remedy at law.
Another contention is that the petition fails to show or allege any irreparable injury to property or to a property right. It is said that “property” as used in.the statute means something both physical and tangible, something concrete; and “right,” something growing out of this physical, tangible, concrete thing. This, in the face of the averments of the petition that the interference and annoyance of plaintiff’s employees by threats have interfered and continue to interfere with and obstruct the plaintiff’s business. To assert that the only possible support for this claim of plaintiff’s is that it has a proprietary interest in its employees — in other words — that plaintiff’s claim in this respect can be upheld in the courts only upon the theory that plaintiff’s employees are its chattels and slaves, is absurd. The plaintiff .is not required to do more than state the facts upon which it bases its cause of action. Its right to conduct its own business without interference of the defendants, physically and otherwise, as set forth in the petition, is a right which the courts will recognize as a property right; and the acts and conduct of the deJ fendants, which the demurrer admits shows that the injury to plaintiff’s business is irreparable.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The executrix of J. W. Robinson brought an action against A. W. Wilson and C. F. Mosby on a promissory note for $1,481.30. Liability on the note was not contested, but the defendants relied upon a set-off in favor of Wilson (who was the principal on the note) growing out of a land deal between Wilson and Robinson. Judgment for $133.14 was rendered in favor of the plaintiff, and she appeals.
The undisputed findings show that Wilson and Robinson became jointly interested in the sale of land which had been purchased by Wilson, and a sale of which was made in the interest of both, the controversy arising over a division of the profits and the adjustment of expenses in connection with the transaction. Four findings are contested as not supported by the evidence. One is to the effect that when the joint venture was entered into Robinson agreed to pay Wilson $1,000 for a half interest in the land, but did not do so at that time. Testimony in support of the finding was given orally and by deposition, but the appellant contends it was not sufficient to overcome the fact that on the date of a written contract between Robinson, Wilson and the tenant of the land with reference to its sale Robinson gave Wilson a check for $2,100, which the appellant claims included the $1,000 referred to, asserting that it was not otherwise accounted for. There being positive evidence in favor of the finding and no conclusive proof that the check covered this item the decision of the trial court must stand.
Another finding was to the effect that Wilson, having received $2,500 on their joint account, had paid half of it to Robinson. The appellant contends that the payment of the $1,250 was not supported by the evidence, although a witness deposed that he heard a conversation between Robinson and Wilson' about this item and the $1,000 already mentioned, at the conclusion of which, after some figuring, Wilson made a check and gave it with some cash to Robinson ; moreover the item appeared upon a statement made up by accountants, apparently at the request of the parties during the life of Robinson, which was not shown, however, to have been seen by him. We regard the evidence as supporting the finding.
Another finding was to the effect that Wilson sold the crops which were growing on the land when he bought it, receiving therefor $702.40, one-half of which belonged to Robinson. The appellant urges that the crops should have been found to be of the value of $1,665.50. Wilson had claimed all of this crop, and to this extent the finding was against him. The appellant suggests that on this account statements by Wilson of its quantity and price, brought out at the trial by the plaintiff, were not of evidential value. These statements, however, give the only definite basis for arriving at the amount of money realized from the crop and appear to have been introduced for that purpose. The only other evidence from which the value might have been arrived at consisted of an estimate of the yield per acre, which the trial court may have found unconvincing. The finding is therefore warranted.
The only other contested 'item is the allowance to the defendant of $60 for the expenses of three trips to La Cygne to sec a tract of land owned by Robinson, Wilson and a third person, who had an agreement that whichever of the three effected a sale should receive a commission. A sale was made by the third person. We discover no evidence of any agreement that the expenses of the defendant’s trips were to be borne or shared by the other owners, and this finding will therefore be set aside.
The judgment will be modified by the addition of $60 and affirmed as so modified. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a promissory note given by the defendant to the plaintiff. Judgment was rendered against the defendant, and he appeals.
The defendant was vice president of the bank, and owner of eighteen shares of its corporate stock of the par value of $100 per share. The bank made a sixty per cent assessment upon its stock, and the defendant gave his note for $1,080, the amount due from him. The note sued on was a renewal note, given August 1, 1916, and bore indorsement of payment in the sum of $860, made on October 12, 1916. The prayer of the petition was for $220 and interest. The defense was payment out of dividends on the defendant’s stock.
On October 12, 1916, the defendant sold his stock for $4,860, or $270 per share. The purchaser paid the price by taking up a note of the defendant for $4,000, given to another bank, and by paying the amount indorsed on the note sued on. When the note sued on was introduced in evidence, the following words appeared just above the defendant’s signature: “This note was given for assessment on stock, and is payable out of the earnings thereon.” The defendant testified the quoted words were in both the original note and the renewal note when he excuted them. There was evidence the words were nót in the original note. The defendant remained in the bank, acting as one of its officers, for two or three days after he sold his stock. During that period he had the note in his possession as such officer, and there was evidence the words were added to the note within that period. Afterwards dividends were declared which the bank did not retain and apply on the note. The district court solved the controversy by a general finding in favor of the bank.
The defendant says the note was without legal force because given for a double liability assessment made contrary to the constitution. When the defendant’s brief was written, the final opinion of this court in the case of Bank v. Laughlin, 111 Kan. 520, 207 Pac. 433, had not been published.
The defendant makes no contention that any officer or agent of the bank other than himself was privy to the addition to the note and, under the district court’s finding, the defendant, as an acting' officer of the bank, undertook to relieve himself of personal liability on his own note. Manifestly the attempt was nugatory.
The defendant says, the bank ratified the addition, and is es-topped to dispute its valid incorporation into the note. There was no evidence of ratification or estoppel beyond the fact that suit was not brought immediately after maturity of the note, a fact insufficient to support either assertion.
The action was commenced in the city court of Wichita, and was taken by appeal to the district court. The facts in reference to the addition to the note were developed without objection, in a trial of the issue of payment, and the district court was authorized to disregard the addition, without formal pleading that it formed no part of the contract, and without reforming the instrument.
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The opinion of the court was delivered by
PoeteR, J.:
In an action upon an insurance policy covering an automobile and indemnifying the owner from loss by fire plaintiff recovered and defendant appeals.
The policy was issued December 6 and the car was destroyed by fire on December 28, 1920. The defense relied upon was concealment or misrepresentation in writing concerning material facts. It was alleged that it was essential and material for the defendant to be informed as to the model and year in which the automobile was manufactured and the price paid for it; that in his application for the policy plaintiff represented that his automobile was a model of the year 1918, and that the price he paid for it on November 12, 1920, was $1,750, while as a fact the automobile was of the model and year 1916, and the purchase price was much less than he stated; and that by reason of the misrepresentations the contract became void. The answer denied that the car was of the value of $1,500 and alleged that it was not worth to exceed $800.
The plaintiff’s testimony was to the effect that he became the owner of the car by trading a 1917 Marmon worth $2,600 and that he received in exchange the Haynes touring car, also a Buick Four and $250 in cash. The former agent of the insurance company who took the application was a witness for the plaintiff, and testified that he had been in the automobile business for eleven years and was acquainted with the market value of used cars when the policy w'as issued; estimated the car to be worth $1,750; and that he offered to insure it for $1,575. Other witnesses familiar with the car testified that in their judgment it was worth from $1,600 to $1,800.
At the time the policy was issued prices of new cars of all kinds were higher than ever before, and used cars brought what now seem extravagant prices. It is true there was a conflict in the evidence as to the value of the car in question. Witnesses for the defendant placed the value at from $600 to $800.
With their general verdict the jury returned certain special findings. They found that plaintiff traded a Marmon car for a Haynes car and received also a Buick Four and $250 in cash and that the insured car was a 1917 model. Finding No. 5 is to the effect that the purchase price paid by plaintiff for the Haynes car was $1,750. The defendant moved to set aside this answer and predicates error upon the refusal to sustain the motion. Defendant also moved to set aside the verdict and for judgment in defendant’s favor on the special findings. The court overruled this and also a motion for a new trial.
It is insisted that the undisputed facts show that plaintiff did not pay $1,750 for the car, because he paid no money, but merely traded in a Marmon car and received a Buick car and $250. Because of this it is said the court should have set aside the findings of fact, and the facts being undisputed, the case should now be considered as if that answer had been set aside.
The representation in the policy was not that $1,750 was the value of the car, but that plaintiff paid that much for it. Although he paid no cash at all it would hardly do to say that he paid nothing; but that is substantially the effect of defendant’s argument carried to its logical conclusion. We do not construe the finding to mean that the plaintiff paid in cash $1,750. Manifestly what the jury meant was that the car cost him that sum. And it was no concern of defendant whether plaintiff paid cash or exchanged property worth $1,750. The plaintiff testified he thought the car was worth the price at which he took it in the trade. The Southwest Motor Company carried the car on its books at $1,600 for the pur pose of including it in a blanket policy of insurance; and the memorandum made of the trade corroborates the plaintiffs statement as to the value at which the car was taken in the exchange. E."J. Negy, manager, made the exchange. He was called as a witness for defendant, and although he testified that the Haynes ear was not worth to exceed $600, he admitted on cross-examination that he had told plaintiff he valued it at $1,750. Besides, there was the testimony of the agent of the insurance company,.who wrote the application, that he estimated the car was worth $1,750, and fixed the amount of the policy at $1,500.
The other representation upon which the defendant relies as a warranty, is that the car was a 1918 model. The jury found that it was a 1917 model. The agent of the company not only examined the car to ascertain its value, but testifies that he examined it to determine the engine number, and it is insisted, and we think with reason, that he could have discovered very readily from the serial number that the car was a model of 1917, The plaintiff says he believed the car to be a 1918 model because Negy told him it was. It is apparent that the jury believed that there was no purpose of evasion in the answers to the questions in the application.
A clause in the policy provides that any misrepresentation, in writing or otherwise, of material facts or circumstances concerning the insurance or the subject thereof shall make the insurance void.
It is true that courts have often held that there is a persistive quality or sacredness involved in a warranty which does not inhere in a mere representation, that a warranty differs from a representation in that falsity of the latter will defeat the contract only where it is material, a representation being considered as merely an inducement to the contract, but that in case of a warranty the statement is made material by the language of the contract, so that the misrepresentation of a fact warranted avoids the contract, regardless of whether it be considered as material in any respect to the risk or the loss, and without regard to whether it be made in good faith or through mistake. (See 19 Cyc. 681, 684.)
In policies of insurance the better rule is, that notwithstanding the agreement of the parties, a warranty may by reason of facts and circumstances be regarded as waived by the company. (Insurance Co. v. Davis, 59 Kan. 521, 53 Pac. 856.) Some of the decisions employ the term “estoppel” instead of “waiver,” but evidently mean the latter.
The following statement from 2 May on Insurance, 4th ed., § 497, was quoted with approval in Green v. Annuity Association, 90 Kan. 523, 529, 135 Pac. 586:
“Insurers may, and often do, find themselves in such a position that they cannot avail themselves either of a breach of warranty, or of a misrepresentation or concealment. ... To deliver a policy with full knowledge of facts upon which its validity may be disputed, and then to insist upon these facts as ground of avoidance, is to attempt a fraud. This the courts will neither aid nor presume; and when the alternative is to find this, or to find that, in accordance with honesty and fair dealing, there was an intent to waive the known ground of avoidance, they will choose the latter.”
The company cannot defend on the ground that the policy was void at its inception if it had knowledge of the facts when it executed the contract and took the premium. On general principles, a knowledge which would be sufficient to lead any prudent person to inquire about the matter, when it could easily be ascertained, ought to be regarded as a knowledge of the fact. And where the agent had knowledge of the existence of facts, which would render the contract void in its inception, if its provisions were insisted upon, it would be presumed that such provisions were waived, because the courts will not impute to the company the fraudulent intent to deliver and receive pay for an invalid policy. Upon this ground the agent’s knowledge of the fact that the property is vacant, or that there is concurrent insurance, or encumbrances, or his knowledge of facts relating to the ownership of the property, are regarded as knowledge of the company. See extended note on the effect of warranty, 16 L. R. A., n. s., 1213-1222.
In this case, for the reasons already suggested, we hold that the defendant is not in a position to avail itself of the alleged breach of warranties. And for the same reason there was no error in the instructions construing the contract of insurance.
It is complained that Johnson, the agent of the defendant when the policy was issued, was permitted to testify, over objections, that he told plaintiff he would insure the car for $1,575. It is urged that this was immaterial and prejudicial; but we think the court was right in holding that it was competent, at least on the question of good faith. It is true that defendant had not raised that question, but plaintiff was insisting that he had acted in good faith. The evidence was also competent as tending to show that the company was estopped to claim that it insured the car only because of representations and warranties as to the model year and the price paid.
One other contention remains. The court allowed an attorney fee of $250 to -be taxed as costs. It is insisted that the defendant is' not an incorporated insurance company, as appears by the language of the policy, but that it is a mutual indemnity association. The statute authorizing the.allowance of such a fee is section 5479, General Statutes of 1915, which is very broad in its terms, and it provides—
“That in all actions ... in 'which judgment is rendered against any insurance company on any policy given to insure any personal property . . . against loss by fire, tornado or lightning, the court in .rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee, to be recovered and collected as a part of the costs.”
We hold that the defendant comes within the general language of the act, and that the allowance of an attorney’s fee was proper.
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The opinion of the court was delivered by
Fatzee, J.:
This action was brought pursuant to K. S. A. 19-232 to recover from the appellees overcharges and penalties for materials and supplies purchased from them by the appellant, the Roard of County Commissioners of Sedgwick County. The record discloses the materials purchased were for use by the county in the maintenance of its roads and bridges, and for fire control equipment.
The overcharges occurred in the years 1961 and 1962. No demand was made until April 15, 1965, and suit was filed May 21, 1965. The district court granted summary judgment upon appellees’ motion for the reason the provisions of K. S. A. 60-514 (3) were applicable to the factual situation in the case, and the action was barred by the statute of limitations.
Application of the general statutes of limitations to the state, its political subdivisions and agencies is the subject of specific legislation in K. S. A. 60-521, which reads:
“As to any cause of action accruing to the state, any political subdivision, or any other public body, which cause of action arises out of any proprietary function or activity, the limitations prescribed in this article shall apply to actions brought in the name or for the benefit of such public body in the same manner as to actions by private parties, except in (1) actions for the recovery of real property or any interest therein, or (2) actions to recover from any former officer or employee for his own wrongdoing or default in the performance of his duties.” (Emphasis supplied.)
The provisions of K. S. A. 60-514 (3) found applicable by the district court, read:
“The following actions shall be brought within one (1) year . . . (3) An action upon statutory penalty or forfeiture.”
Did the district court err in holding the appellant’s cause of action was barred by K. S. A. 60-514 (3), or to put it another way, did the cause of action arise out of the performance of any proprietary function or activity within the meaning of 60-521?
The law as it relates to the application of the general statutes of limitations on actions brought by the state, its agencies or subdivisions has been stated many times. The early case of State v. School District, 34 Kan. 237, 8 Pac. 208, was an action against the school district to recover on school district bonds and accompanying coupons, and it was held:
“A statute of limitations will not run against the state or the sovereign authority unless the statute itself expressly so provides, or unless the implications of the statute to that effect are so strong as to be utterly unavoidable; and even where the state holds the claim or debt sued on, as the assignee or transferee of some individual person, still such statute of limitations will not run against the state where such statute had not commenced to run before the state obtained the claim or debt.” (Syl. f 3.)
As indicated, the case states the rule applicable in this jurisdiction that the statutes of limitations will not run against the state or the sovereign authority unless the statute itself expressly so provides. In the instant case, the statute (19-232) under which the action is brought, makes no reference to the applicability of the general statutes of limitations, nor does it state implicitly or by reference or by implication that any limitation statute shall apply. The statute reads:
“All fees, costs or other allowances, or any fees obtained from or allowed against any county, when the same are not authorized by law, and not refunded on demand, may be recovered back in a civil action, in the name of the proper county, in any court of competent jurisdiction; and on the rendering of the judgment in any such case, the justice or the court rendering the same shall add one hundred percent to the same, to go to the county, and also a fee of ten dollars if in a justice’s court and twenty-five dollars if in the district court, to go to the county attorney or other person prosecuting the same.”
In Osawatomie v. Miami County, 78 Kan. 270, 96 Pac. 670, the city commenced an action against the county to recover certain taxes. The county had retained and diverted part of the taxes levied by the city to its own treasury. It was held:
“The rule that statutes of limitations do not apply to actions by the state unless a legislative intention that they shall do so is shown by express language or appears by the clearest implication also applies to subordinate political bodies, including municipal corporations, with respect to any litigation to enforce governmental rights.” (Syl. Ifl.) ( Emphasis supplied.)
The opinion reaffirmed the rule set forth in State v. School District, supra, but made it applicable not only to the state but to political subdivisions such as counties, with respect to any litigation to enforce governmental rights. See Smith v. Higgins, 149 Kan. 477, 87 P. 2d 544.
In Thomas v. Ellis County, 91 Kan. 443, 138 Pac. 409, it was held:
“Counties are mere auxiliary agencies of the state government, and, like the state, are immune from liability on account of damages occasioned by the manner in which they exercise or fail to exercise their governmental powers.” (Syl. fl.)
In this state each organized county is a body corporate and politic (K. S. A. 19-101) and is created for the purpose of convenient local government and exists only for public purposes connected with the administration of state government. A county is merely part of the governmental machinery employed in carrying on the affairs of the state and has no power except such as is given it for public purpose by the Legislature, except as it may be restricted by the state Constitution. (Harling v. Wyandotte County Comm’rs, 110 Kan. 542, 204 Pac. 763; Osborne County v. City of Osborne, 104 Kan. 671, 673, 180 Pac. 233.)
In Jackson County v. Kaul, 77 Kan. 715, 96 Pac. 45, it was said:
“Counties are mere political subdivisions of the state. (Commissioners of Shawnee County v. Carter, 2 Kan. 115.) They are mere instrumentalities of the state in the exercise of its governmental functions, and are given corporate power only so far as may be necessary to aid those functions. They are only quasi-corporations (Comm’rs of Neosho Co. v. Stoddart, 13 Kan. 207, 210; Freeland v. Stillman, 49 Kan. 197, 207, 30 Pac. 235; In re Dalton, 61 Kan. 257, 264, 59 Pac. 336, 47 L. R. A. 380; The State v. Wilson, 65 Kan. 237, 238, 69 Pac. 172), and are clearly distinguished from municipal organizations like cities, which are given far greater powers and are endowed with much larger measures of corporate life. (1 Dill. Mun. Corp., 4th ed., § 25; 11 Cyc. 341 etseq.) . . .” (1. c. 719.)
A county is a quasi-corporation and not a corporation as is a city. The distinction was pointed out and commented upon by Mr. Justice Brewer in Beach v. Leahy, 11 Kan. 23, and that distinction has subsequently been referred to and affirmed. (State, ex rel., v. Comm’s of Pawnee County, 12 Kan. 426, 439; Eikenberry v. Township of Bazaar, 22 Kan. * 255, * 258, 31 Am. Rep. 198; County of Marion v. Riggs, 24 Kan. * 255, * 258; Pfefferle v. Commr's of Lyon Co., 39 Kan. 432, 436, 18 Pac. 506; State, ex rel., v. Wyandotte County Comm'rs, 140 Kan. 744, 748, 39 P. 2d 286.)
In Smith v. Higgins, supra, it was said:
“. . . In many decisions this court has discussed the nature of the county and has often called attention to distinctions between counties and cities as legal entities. The county is not a corporation in any ordinary sense. It has at times been designated as an ‘involuntary quasi corporation.’ It is an arm and agent of the state set up to perform certain governmental and political functions. As such it partakes of the immunity which inheres in state sovereignty . . .” (1. c. 479.)
Moreover, the political and governmental functions and activities of organized counties do not partake at all of a private character. In exercising the powers conferred by the Legislature, counties are not engaged in the performance of a business transaction, nor do they act for the purpose of increasing the wealth of the county as a body corporate, nor do they provide any proprietary service to their inhabitants. (Pfefferle v. Comm'rs of Lyon Co., supra, p. 436.) In short, a county is not a corporate entity in the sense of being a business corporation for private purposes or for pecuniary gain or profit. In Silver v. Clay County, 76 Kan. 228, 91 Pac. 55, it was held:
“Counties are involuntary quasi-corporations and are mere auxiliaries to the state government and partake of the state’s immunity from liability. They are in no sense business corporations.” (Syl. f 1.) (Emphasis supplied.)
That rule has been stated and affirmed in Gray v. Sedgwick County, 101 Kan. 195, 165 Pac. 867; State Highway Comm. v. Puskarich, 148 Kan. 388, 391, 83 P. 2d 132, and Caywood v. Board of County Commissioners, 194 Kan. 419, 421, 399 P. 2d 561.
The Caywood case presented the question whether Sedgwick County was immune from liability for its alleged negligence in the operation of a recreational area it established and maintained. In the opinion it was stated:
“We consider it unnecessary here to enter into a discussion of the long established rule in this state pertaining to the liability or nonliability of a city for negligence — depending upon whether at the time the city was engaged in a ‘proprietary’ or ‘governmental’ function. A thorough discussion is found in Krantz v. City of Hutchinson, et al., 165 Kan. 449, 196 P. 2d 227, 5 A. L. R. 2d 47, and Wendler v. City of Great Bend, 181 Kan. 753, 316 P. 2d 265.
“Counsel for plaintiff have cited us no case from this jurisdiction where— with respect to liability of a county for negligence — a distinction has been made between governmental and proprietary functions, and research has failed to disclose any such decision. . . .” (1. c. 421.)
This court held that the county was not liable for damages for negligence unless liability was expressly imposed by statute, because the county like the state partakes of the state’s immunity.
The recent case of McCoy v. Board of Regents, 196 Kan. 506, 413 P. 2d 73, involved an action to recover damages for personal injuries sustained by the plaintiff while a patient in the University of Kansas Medical Center, and it was held:
“The rule applying governmental-proprietary distinction to the functions of municipalities in determining liability for damages for negligence is irrelevant as to the functions of a state agency.” (Syl. f 2.).
In the opinion it was said:
“Plaintiff’s contention that the operation of the Medical Center by defendants constitutes a proprietary, as opposed to a governmental, function is irrelevant to the issue under consideration. The governmental-proprietary distinction relating to municipal immunity has never been applied to activities of a state agency in this jurisdiction. The state is the fountainhead of governmental immunity. The immunity of subordinate branches of the government stems from the state. As long as a subordinate branch of the state performs governmental and political functions set up and imposed by the state, then such branch partakes of the immunity which inheres in state sovereignty. (Smith v. Higgins, 149 Kan. 477, 87 P. 2d 544.) A city, unlike a county is authorized to voluntarily pursue functions beyond those governmental and political functions imposed upon it as a branch of the state government. Generally when such proprietary functions are pursued by a municipality it moves out from under the cloak of immunity from tort liability stemming from the state. Cases demonstrating the application of the governmental-proprietary function relating to municipal immunity have been thoroughly catalogued in our recent decisions of Parker v. City of Hutchinson, supra, and Caywood v. Board of County Commissioners, supra. The distinction is inapplicable to the state agency function under consideration herein and further discussion is unnecessary.” (1. c. 511.) (Emphasis supplied.)
It is apparent that the Caywood and the McCoy cases complement a long line of decisions establishing the general proposition that counties are mere administrative extensions of the state itself, and are not “municipal corporations” in the same sense as are the cities, which are given far greater powers and are endowed with much larger measurers o£ corporate life. It follows that counties, being agencies of the state, partake of attributes of the state itself insofar as the application of the doctrine of sovereign immunity, the statute of limitations, and particularly the lack of ability to engage in proprietary functions and activities. See Jackson County v. Kaul, supra; Thomas v. Ellis County, supra; Hading v. Wyandotte County Comm’rs, supra, and State, ex rel., v. Wyandotte County Comm’rs, supra.
Applying the foregoing legal principles, it follows that 60-521 does not apply, nor was it intended to apply, to actions brought by the state or its subordinate political subdivisions such as counties, to enforce governmental rights. In the instant case, the county was not engaged in a proprietary function or activity — in fact and in law it could not engage in such a function or activity since there does not exist such a thing as a proprietary function at the state or county level.
The conclusion just announced decides this case. However, we note the materials and supplies purchased by the county in the instant case were for use in the road and bridge department and for fire control equipment. In Ahrend v. City of Kansas City, 173 Kan. 26, 243 P. 2d 1031, the court held that a city purchasing cement for the repaii' of its streets was acting in its governmental capacity and not in its proprietary capacity. In the opinion it was said:
“There is no question here but that this cement was to be used in the repair of the city streets. That the city is not liable for the negligence of its officers and employees while engaged in the repair of its streets is not open to question. (See Parker v. City of Wichita, 150 Kan. 249, 92 P. 2d 86; also Rose v. City of Wichita, 148 Kan. 317, 80 P. 2d 1078.) The procuring of the cement at the warehouse of Cooke & Company was incidental and a part of the work in which the city was engaged, that of repairing the city streets. It would be a strained construction to limit the nonliability of the city to the precise scene of the work. The driver of the truck was engaged in repairing the city streets as much when loading the cement at the warehouse as when he was unloading it at the place where the work was being done.” (1. c. 29.)
Assuming, arguendo, that the governmental-proprietary distinction did exist in county functions and activities, the result would be the same. In building and maintaining public roads and bridges and in preventing fires in its yards and buildings, a county performs those functions as a subdivision of the state in its governmental capacity and the purchase of materials to be used for those purposes is a governmental function.
We hold that K. S. A. 60-521 has no application to the instant case. The authorities establish beyond question that the governmental-proprietary distinction does not apply to the state or to counties; and, further, it is a settled rule in this state that the purchasing of materials to be used in a governmental capacity is itself a governmental function.
It follows the district court erred in holding the cause of action was barred by 60-514 (3) and in granting the appellees summary judgment.
The judgment of the district court is reversed, and the cause is remanded to proceed to trial on the merits. | [
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The opinion of the court was delivered by
Fromme, J.:
Emmitt Robinson was convicted and sentenced for possession of marijuana as proscribed in K. S. A. 65-2502. He was sentenced on two separate counts to not more than seven years, the sentences to run concurrently. Defendant Robinson appeals from the judgment of conviction.
Three primary questions are raised. First, was there probable cause to support a warrantless search of his automobile which contained three brown paper sacks of marijuana? Second, did the court err in restricting the cross-examination of a witness and in refusing to require disclosure of the identity of an informer? Third, was a proper foundation laid to show relevance of physical evidence admitted during the trial?
The two counts of possession arose out of separate incidents on August 13 and August 27, respectively. The first two questions relate solely to count one. The third question relates to items of physical evidence, marijuana, introduced in support of both counts.
We will summarize the facts and discuss the questions pertaining to count one first.
On August 13, 1967, at 9:55 p. m. the defendant was driving his green 1955 Chevrolet station wagon south on Wabash Street, in Wichita, Kansas. Officer Cochran stopped the vehicle when he noticed it was without proper lights. Defendant got out of his station wagon and left the door open on the driver’s side. He appeared unsteady on his feet as he approached the officer.
Detective Myers of the Wichita vice squad was patrolling this neighborhood. He drove up shortly after defendant got out of the station wagon. Officer Cochran talked to the defendant. Detective Myers walked past them and stopped beside the station wagon. Through the open door he observed three brown paper sacks on the floor behind the front seat. He asked the defendant what was in the sacks. The defendant answered, “How did that get in there?” The detective asked, "What is it?” The defendant replied, “Who put that in my car?” Detective Myers, while standing beside the vehicle, reached into the station wagon and opened one paper sack. He then saw it contained marijuana. He arrested the defendant and removed the three sacks from the vehicle.
The defendant was charged with possession of marijuana. Prior to trial defendant filed a motion to suppress the evidence. He argued the three sacks of marijuana were obtained in an illegal search of his vehicle without a search warrant. He points out no arrest was made for possession of marijuana until after the search of his car disclosed the contraband.
Before trial the state introduced testimony to show probable cause and the reasonableness of the search. Detective Myers testified he was assigned to the vice squad and was patrolling this particular neighborhood because of prior information received. An informer had advised him that a green 1954 station wagon containing marijuana would be in that vicinity. The exact description of the vehicle was not available. He saw Officer Cochran stop a green 1955 Chevrolet station wagon and he proceeded to its location. When he approached the vehicle the informer was in that vicinity and made gestures indicating this was the station wagon for which he was looking. The detective testified the informer was reliable and had previously given him information pertaining to law violations. The previous information received had proven to be accurate. Defendant’s counsel was given the opportunity to cross-examine the officer on reliability of the informer as to previous information given pertaining to law violations but he was not permitted to determine the informer’s name or identity.
This testimony was taken in the absence of the jury and was for the purpose of determining the admissibility of this physical evidence. (See K.S. A. 60-408.)
It should be noted the vehicle containing marijuana was stopped on a public street while in transit. The search consisted of reaching through an open door of the vehicle and inspecting the contents of a brown paper sack. Marijuana was disclosed thereby and the seizure was made contemporaneously with the announced arrest of the defendant. The three sacks containing marijuana were removed from the vehicle while it remained in the public street and fully mobile.
In response to the first question raised by the defendant the state cites State v. Hunt, 198 Kan. 222, 424 P. 2d 571, to support the legality of the search.
However, the defendant correctly points out in that case the fruits of a known crime (cigarettes) were seen by the officer through a car window. Since the eye can commit no trespass no illegal search occurred. The known location of the fruits of crime furnished probable cause to support the arrest without a warrant. The search was then made by the officer incidental to the lawful arrest.
In the present case the content of the brown paper sacks was not apparent. A trespass, slight though it may have been, was committed when the detective reached through an open door, twisted open the sack and viewed the marijuana in the station wagon. If this search was unreasonable, as not being based upon probable cause, it would follow that the contraband removed from the car could not be introduced at the trial to support the charge against the defendant. In such event the charge contained in count one could hardly be sustained because of lack of evidence.
The ability of an automobile to be moved to an unknown location or beyond the jurisdictional reach of the officer makes resort to a search warrant impractical in some cases. Courts have long permitted a seizure to be made without a search warrant when known contraband is viewed by the officer through a car window. (See State v. Hunt, supra; State v. Brown, 198 Kan. 473, 426 P. 2d 129; State v. Blood, 190 Kan. 812, 378 P. 2d 548 and cases cited therein.)
The mobility of an automobile has also given rise to court decisions holding that if an officer has reasonable cause to believe a conveyance contains contraband or items which offend against the law the officer may conduct a reasonable warrantless search. (Carroll v. United States [1925] 267 U. S. 132, 69 L. Ed. 543, 45 S. Ct. 280; Brinegar v. United States, 338 U. S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302; State v. Blood, supra.)
The authority to search in such cases is not necessarily conditioned on the right to arrest or the existence of a search warrant. It may be dependent on reasonable cause which an officer has for belief that contents of the vehicle offend against the law. (Carroll v. United States, supra; State v. Blood, supra. See also United States v. Ventresca, [1965] 380 U. S. 102, 107, 13 L. Ed. 2d 684, 85 S. Ct. 741 and United States v. Francolino, [1966] 367 F. 2d 1013, cert. den. 386 U. S. 960, 18 L. Ed. 2d 110, 87 S. Ct. 1020.)
The facts of the present case clearly establish the detective had reasonable cause to reach through an open door of the vehicle and inspect the contents of the brown paper sack. A reliable informer had previously advised the detective of the probable use of a station wagon similar in appearance to the one stopped by the officer. The detective investigating was on the Wichita vice squad. As he approached the station wagon an informer by gesture indicated this was the man and the station wagon. The detective saw three brown paper sacks on the floor of the vehicle. The defendant disclaimed knowledge of their contents and the sacks were of a type suitable for holding marijuana. It was reasonable and proper under these circumstances for him to reach in through the open door of the vehicle and inspect the contents of the sack. His actions were based on probable cause to believe defendant possessed marijuana. The contraband disclosed was properly seized and formed the basis of a lawful arrest without a warrant.
In passing we note Henry v. United States, 361 U. S. 98, 4 L. Ed. 2d 134, 80 S. Ct. 168 and Beck v. Ohio, 379 U. S. 89, 13 L. Ed. 2d 142, 85 S. Ct. 223 are not controlling here. In Henry the officers were acting on information the car contained contraband whisky, which it did not. They seized, instead of whisky, stolen radios. In Beck the illegal search was made of a suspect’s person. The search of the suspect’s person was held illegal as not incidental to a lawful arrest. Neither of these cases have application to the facts of the present case.
We turn to the question of whether the court erred in unduly restricting cross-examination by refusing to require disclosure of the identify of an informer.
K. S. A. 60-436 provides:
“A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this state or of the United States to a representative of the state or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.”
The defendant contends sub-paragraph (b) of the statute should be applied here. He contends in a general way the issues could not be fairly determined without disclosure of the identity of the informer. He argues that every accused has the right to be confronted by the witness and to cross-examine as to material facts. The issue concerned here is probable cause to determine reasonableness of a search of the defendant’s vehicle. The issue in such case is not guilt or innocence of the defendant.
When the issue is probable cause for the search, and not guilt or innocence of the defendant, the officer generally need not disclose the identity of an informant. Our statute makes two exceptions possible, (1) when the identity has already been otherwise disclosed or (2) when it is essential to assure a fair determination of the issues.
The governmental privilege against disclosure of the identity of an informer is well established and long familiar to the law of evidence. (See 8 Wigmore, Evidence § 2374 [McNaughton rev. 1961].) The cases supporting such a privilege have been collected and may be found in Washburn Law Journal, Vol. 7, p. 116. No cases have been cited from Kansas and our search has disclosed none. However, the rule was codified in K. S. A. 60-436 when the legislature passed the comprehensive Code of Civil Procedure in 1963.
We note this statute places discretion in the trial judge to require disclosure of the identity of an informant in cases when he finds one of the statutory reasons for disclosure present. The judge refused to make such a finding in this case. The refusal to require disclosure of the identity of the informant was properly within the discretion of the trial court. The record fails to show any abuse of that discretion.
This privilege has been recognized by the federal courts. In McCray v. Illinois, 386 U. S. 300, 18 L. Ed. 2d 62, 87 S. Ct. 1056, it was said:
“In sum, the Court in the exercise of its power to formulate evidentiary rules for federal criminal cases has consistently declined to hold that an informer’s identity need always be disclosed in a federal criminal trial, let alone in a preliminary hearing to determine probable cause for an arrest or search. Yet we are now asked to hold that the Constitution somehow compels Illinois to abolish the informer’s privilege from its law of evidence, and to require disclosure of the informer’s identity in every such preliminary hearing where it appears that the officers made the arrest or search in reliance upon facts supplied by an informer they had reason to trust. The argument is based upon the Due Process Clause of the Fourteenth Amendment, and upon the Sixth Amendment right of confrontation, applicable to the States through the Fourteenth Amendment. Pointer v. Texas, 380 US 400, 13 L ed 923, 85 S Ct 1065. We find no support for the petitioner’s position in either of those constitutional provisions.” (18 L. Ed. 2d 71.)
(See also Scher v. United States, 305 U. S. 251, 83 L. Ed. 151, 59 S. Ct. 174; Rugendorf v. United States, 376 U. S. 528, 11 L. Ed. 2d 887, 84 S. Ct. 825.)
Accordingly we hold in this case no state or federal constitutional right of confrontation was affected and under the facts and circumstances of this case the trial court properly refused to require disclosure.
The final question raised in this appeal relates to seven packages of marijuana admitted into evidence. Three of the seven packages were the brown paper sacks removed from the station wagon on Wabash Street. These formed the basis for the charge in count one. The remaining four packages relate to count two. Since the question raised applies to both counts it is now necessary to summarize the facts and circumstances giving rise to count two.
On August 27, 1967, Officer Cochran was called to defendant’s home because of a family disturbance. Defendant’s wife, Virginia, began relating to the officer the cause of the disturbance. The defendant arrived on the premises and a quarrel erupted between husband and wife in the presence of the officer. After they were separated by Officer Cochran, Mrs. Robinson shouted, “I can show you something that you can put him in jail for.”
A 1955 green Chevrolet station wagon was parked near the back of the house. Mrs. Robinson led the officer and the defendant to the station wagon. She asked the officer to look in a three gallon water can located in the vehicle. Before he could do so the defendant grabbed the can and extracted a handful of tinfoil. A quantity of marijuana was wrapped in the tinfoil. Officer Cochran took charge of this package and called Detective Myers of the Wichita vice squad. When Detective Myers arrived Officer Cochran handed the marijuana to him and advised him of the facts concerning its discovery. Defendant was placed under arrest for possession of marijuana. He was searched for weapons by Detective Myers and additional marijuana was found in his shirt pocket. Defendant was taken to the police station by Officer Cochran. Mrs. Robinson took Detective Myers on a tour of the premises.
Detective Myers discovered stalks of the marijuana plant growing behind a shed on defendant’s premises. He obtained a sample of these plants. Inside the shed he discovered a large concrete slab on which there were leaf particles of the marijuana plant. He obtained a sample of these leaf particles. The samples taken were separately packaged. These two samples together with the marijuana taken from the defendant’s shirt pocket and the package wrapped in tinfoil were marked by Detective Myers and placed in a property locker at the Wichita police station.
The defendant objected to the introduction of all seven packages of marijuana into evidence. He contends a link in the chain of possession is missing because the custodian of the property lockers did not testify as to his possession of these seven exhibits. There is no evidence in the record before us to indicate such a person has charge of these lockers or in any way handled the exhibits. The officer, detective and the police department chemist each testified as to his successive possession of these exhibits. They identified the exhibits handled by reference to their initials and the police case number placed on these packages by them. These property lockers are not available to those outside the police department. Sufficient continuity of possession was shown to establish the identity and relevance of these packages.
The admissibility in evidence of a physical object is to be determined by the trial judge on the basis of its relevance and connection with the accused and with the crime charged. In order to justify its admission its identity must be shown to the satisfaction of the trial judge.
In 2 Whartons Criminal Evidence (11th Ed.) § 762 at page 1293 it is said:
“. . . However, the prevailing view is that it is not necessary that such identification should positively and indisputably describe and relate to such evidence. If a question of fact as to the connection of the articles sought to be admitted with the defendant or the crime is raised, the evidence should be admitted for the determination of the jury. The lack of positive identification in such a case affects the weight of the article or substance as evidence, rather than its admissibility.
We see no lack of positive identification in the present case.
Physical objects connected with a proscribed criminal act, or which serve to unfold or explain it, are generally exhibited in evidence whenever the criminal act is under investigation. (State v. Joseph Little, 201 Kan. 101, 439 P. 2d 383; State v. Jerrel, 200 Kan. 415, 436 P. 2d 973.)
Although admissibility in the first instance rests in the judicial discretion of the trial judge, if the circumstances surrounding possession of an article are sufficient to infer relevance to the offense charged an issue of fact is presented. The final decision is left for .the jury to determine whether the accused owned or possessed the articles. (2 Wharton’s Criminal Evidence [11th Ed.] § 761, p. 1290, 1292.)
The jury found the defendant guilty on both counts of possessing these packages of marijuana. There was no error in admitting the marijuana in evidence.
We have carefully reviewed the record before us and find no prejudicial error. The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
This is a contest between parents for custody of a seven year old son.
In 1966 Mildred G. Hardman was granted a divorce from Roy E. Hardman in the District Court of Shawnee County, Kansas. The couple had two small children. Richard K. Hardman was then four years old and his sister, Peggy Jo Hardman, was seven. When the divorce case was set for trial the father withdrew his petition for divorce and the hearing proceeded on the mother’s cross petition without contest. The court awarded custody of Richard to the father, and the custody of Peggy was awarded to the mother.
The parents continued to live in Topeka and both parties married again. In 1967 the father obtained employment in Chicago. The mother then filed a motion for change of custody for Richard. Pending a hearing on the motion the father obtained permission to temporarily remove the son to Illinois. The order authorizing the move required the father and son to return September 21, 1967, for the hearing on change of custody. Difficulties ensued. The hearing on the motion for change of custody was held later in the absence of the father and son. The father’s attorney was present at the hearing. The trial lasted three days.
The trial court entered an order changing the custody of Richard to the mother. The facts upon which the change of custody was ordered are set forth in the court’s order as follows:
“6. That after giving due consideration to the evidence, the arguments and authorities cited by counsel, the court finds that the motion of Mildred G. Hardman, now Mildred G. Tschudy, for a change of custody of the minor child, Richard K. Hardman, should now be sustained. The court further finds that there has been change of circumstances since the date of the divorce decree in the instant case entered September 23, 1966, wherein plaintiff, Roy E. Hardman was given the custody of said minor child. The court further finds that the said change of custody would advance the welfare and would be in the best interests of said minor child, Richard K. Hardman.
“(a) The court further finds that the evidence relating to the facts and circumstances surrounding the physiological and psychological development of Richard K. Hardman indicated, among other things, that the said minor child lacked facility in several areas such as swinging, riding a tricycle, speech and etc., as judged by the normal capabilities of children of the same age. Evidence further indicated said child was in need of surgery. Evidence further indicated that said child was lacking in area of social developments and normal play activities. All of said evidence is relative to the welfare of said child and is wholly uncontradicted.
“8. The court further finds that the plaintiff, Roy E. Hardman, should forthwith return the said minor child, of the parties, Richard K. Hardman to this jurisdiction, and unto the care, custody and control of the defendant, Mildred G. Hardman, a/k/a Mildred G. Tschudy.”
Subsequent motions for rehearing filed on behalf of the father were overruled by the court. The father appeals and presents one question for determination. Did the court err in limiting the evidence bearing upon change of custody to facts and circumstances postdating the original custody order?
The trial court in a letter to counsel set forth the extent of his limitation on the evidence as follows:
“It must be clearly understood that the Court ruled merely that the order of September 29, 1966, (divorce decree) awarding custody of the minor, Richard K. Hardman, was res judicata only as to matters as they existed when said order was made and did not bar later inquiry into the issue of custody and fitness where circumstances had changed. . . . The Court expressly permitted an inquiry into facts and circumstances existing at the time of the most recent hearing with respect to the issue of custody of Richard K. Hardman and the fitness of the defendant (mother).”
The appellant’s argument is as follows: When the original divorce was granted to appellee the appellant withdrew his petition and there was no evidence introduced concerning the fitness of either party to have custody of the children. Appellant says the rule of res judicata does not apply if the question is removed upon the request of the parties. He should now be permitted to introduce evidence of the indiscretions of the mother prior to the divorce hearing. In support thereof he cites Gillet v. Powell, 174 Kan. 88, 254 P. 2d 258.
The facts of the Gillet case are not analogous and do not support appellant’s present argument. In Gillet a partition action had been filed in Chase county and proceeded to judgment. The parties on motion had this judgment set aside as to the mineral interests in Chase county. Later an action was brought in Marion county to partition the same mineral interests in Chase county together with mineral interests in Marion county. The contention was made that issues concerning partition of the Chase county minerals were res judicata. The court properly held res judicata did not prevent partition of the Chase county minerals when these were removed from the previous case by order of the court on motion of the parties.
In our present case the divorce action proceeded to judgment upon the cross petition of the appellee. The appellant’s action in withdrawing his petition did not remove the question of custody from consideration of the court. The court awarded custody of both children by the divorce decree. The issue of custody upon the facts and circumstances existing on September 29, 1966, was adjudicated.
In Lyerla v. Lyerla, 195 Kan. 259, 403 P. 2d 989, we held:
“An order awarding custody of a minor child is res judicata only as to matters as they existed when the order was made, and does not bar later inquiry into the issue of custody where circumstances have changed.” (Syl. ¶ 3.)
The general rule is that the court’s judgment is conclusive and final as to matters and facts which were actually litigated and determined. Not only is everything adjudicated between the parties which the parties chose to litigate, but everything incidental thereto, and which properly could have been litigated with due diligence. This rule has been repeatedly stated and applied in Kansas. (Levi v. Levi, 149 Kan. 234, 86 P. 2d 473; Marks v. Marks, 165 Kan. 348, 353, 194 P. 2d 935; In re Estate of Mullin, 201 Kan. 756, 763, 443 P. 2d 331.)
Although there was no specific finding of fitness when the original decree was entered the trial court awarded custody of one child to each parent. When this order was made a finding that both parents were fit and proper persons to have custody was inherent in that order. (Travis v. Travis, 163 Kan. 54, 56, 180 P. 2d 310.)
This is a change of custody case. Inquiry is always permitted on the issue of custody when the circumstances have changed. However, the facts and circumstances embraced in the issue on which the prior order of custody rested are res judicata. (See Wear v. Wear, 130 Kan. 205, 285 Pac. 606.)
The doctrine of res judicata applies to an order awarding custody of a minor in that a court cannot reexamine the facts formerly adjudicated and make a different order thereon. There must be a substantial change of circumstances, presenting a new case, before the court may make a substantial change in the custody order. (White v. White, 160 Kan. 32, 43, 44, 159 P. 2d 461; Lyerla v. Lyerla, supra; 92 A. L. R. 2d [Anno: Children — Alternate Custody] p. 736.)
It is apparent on reading the findings of the trial court upon which this change of custody was ordered that the ultimate decision of the court did not rest upon evidence of fitness of the parents or lack thereof. The paramount consideration of the court was directed to the welfare and best interests of this seven year old boy. This court has recognized in a long line of cases that the trial court is in a better position to judge whether the best interests of a child are being served. In the absence of abuse of judicial discretion this court will not disturb the trial court’s judgment. (See Gardner v. Gardner, 192 Kan. 529, 532, 389 P. 2d 746, and cases cited therein.)
The only evidence proffered on behalf of appellant related to incidents occurring before the divorce was granted. No evidence was proffered by appellant bearing upon the unfitness of the appellee after the original custody order. The trial court could not readjudicate the facts existing when its original custody order was entered. The trial court properly limited the evidence bearing upon change of custody to facts and circumstances postdating the original custody order. Our decision on the merits makes it unnecessary to consider the procedural question raised by appellee.
Judgment is affirmed. | [
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|
The opinion of the court was delivered by
Larson, J.:
This first impression case raises issues of claimed preemption by the 1996 Federal Telecommunications Act, 47 U.S.C. § 151 etseq. (1994 ed., Supp. V. 2000), and the application of K.S.A. 2000 Supp. 50-6,103 (Kansas Act) of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., to an unauthorized change of an interstate long-distance telephone services carrier (a practice commonly known as “slamming”).
Both parties substantially agree as to the factual and procedural background of the case, but have strikingly divergent views of the applicable law.
In October 1999, the plaintiff, Jules V. Doty, experienced the change of his long-distance telephone service provider (Southwestern Bell Telephone Company) without his consent, knowledge, or authorization. The change order was apparently falsely implemented by a company called International Exchange Communications, Inc., (IEC) through Frontier Communications, Inc., (Frontier) to Southwestern Bell. Frontier did not verify the authority for the change (and contends it is not authorized to do so). Southwestern Bell made the requested change.
When Frontier billed Doty, he learned he had been “slammed” and filed suit in January 2000, alleging Frontier had “submitted or caused to be submitted” an unconsented order for change of services. He requested relief under K.S.A. 2000 Supp. 50-6,103 for statutory penalties and attorney fees.
Frontier’s answer denied it had “submitted” the request for change in service and identified the company which may have been the source of the false and unauthorized request. Frontier claimed it had no liability under K.S.A. 2000 Supp. 50-6,103 and further contended that there was federal preemption of any state law inconsistent with federal communications statutes and regulations issued thereunder.
After cross-motions for summary judgment were filed, the trial court found that no essential facts were in dispute and ruled, as a matter of law, that Frontier had submitted the change order of Doty’s long-distance carrier without his express authorization in violation of K.S.A. 2000 Supp. 50-6,103. The court awarded Doty a statutory penalty of $12,500 and attorney fees. After a motion for reconsideration was denied, Frontier has appealed.
The appeal was transferred to our court pursuant to K.S.A. 20-3018(c).
While we normally first answer jurisdictional arguments, Frontier’s contention of no liability under K.S.A. 2000 Supp. 50-6,103 is intertwined with its claim of preemption, and we will discuss the two questions as submitted to us by the parties. We begin with some basic background information concerning the workings of the present-day telecommunications process.
When a consumer places a long-distance telephone call, the call is forwarded by his or her local exchange carrier that has facilities to receive, route, and transmit local telephone calls to the consumer’s personal interexchange carrier, which is referred to as “a facilities based carrier.” The telephone call is routed over separate long-distance facilities until it reaches the local exchange carrier of the recipient of the call, which then makes it available to the recipient.
The company which has the necessary facilities and equipment to transmit the long-distance calls is referred to as “a facilities based interexchange carrier.” This facilities based interexchange carrier has its own carrier identification code which is utilized to transmit the telephone calls. A facilities based interexchange carrier can provide at retail its own long-distance service to consumers. But, after the AT&T breakup, competition was mandated and a new kind of carrier, “the switchless reseller,” came into existence. The switchless reseller owns no equipment or facilities but purchases large blocks of long-distance time from a facilities based interexchange carrier at wholesale rates and resells that time at retail rates to consumers.
In the present case, a switchless reseller Interaction Exchange Communications, Inc. (IEC), apparently generated an uncon sented change order and sent it to Frontier, a facilities based interexchange carrier. IEC had a contractual agreement with Frontier to buy access to its network and facilities. Frontier in turn sent this order to Doty’s local exchange carrier, Southwestern Bell, for execution. This required Southwestern Bell to reprogram its switching equipment so that Doty’s calls would be routed automatically to the long-distance interexchange facilities owned by Frontier. This resulted in Frontier’s billing to Doty, the filing of the lawsuit, and the result that we have previously stated leading to this appeal.
We first consider Frontier’s argument that even if K.S.A. 2000 Supp. 50-6,103 does apply (which Frontier alternatively contends does not apply because of federal preemption), Frontier has not violated its provisions.
K.S.A. 2000 Supp. 50-6,103 was enacted by the Kansas Legislature, effective June 4, 1998, as a part of the KCPA and reads as follows regarding a “change of telecommunications service provider”:
“(a) As used in this section:
(1) ‘Express authorization means an express, affirmative act by a consumer clearly agreeing to the change in the consumer’s telecommunications carrier or local exchange carrier to another carrier.
“(b) No local exchange carrier or telecommunications carrier shall submit to a local exchange carrier an order to change a consumer’s telecommunications carrier or local exchange carrier to another carrier without having obtained the express authorization of the consumer authorized to make the change. The local exchange carrier or telecommunications carrier requesting the change shall have the burden of proving the express authorization by a preponderance of the evidence.
“(c) No local exchange carrier, .telecommunications carrier or third party utilized to verify an order to change a consumer’s telecommunications carrier or local exchange carrier to another carrier shall:
(1) Engage in any activity, conduct or representation while soliciting or verifying a change in a consumer’s telecommunications carrier or local exchange carrier to another carrier that has the capacity to mislead, deceive or confuse the consumer:
(3) use any methods not approved by the federal communications commission statutes, rules and regulations (as in effect on the effective date of this act) or state corporation commission rules and regulations to change a consumer’s telecommunications carrier or local exchange carrier to another carrier.
“(d) Any local exchange carrier or telecommunications carrier that violates subsection (b) or (c) shall be subject to a civil penalty of not less than $5,000 nor more than $20,000 for each such violation instead of the penalty provided for in subsection (a) of K.S.A. 50-636, and amendments thereto.
“(e) Any violation of this section is a deceptive and unconscionable act or practice under the provisions of the Kansas consumer protection act and shall be subject to any and all of the enforcement provisions of the Kansas consumer protection act. Nothing in this section shall preclude the state corporation commission from exerting its authority as it pertains to intrastate services nor the attorney general from pursuing violations of any other provisions of the Kansas consumer protection act by a local exchange carrier or telecommunications carrier.
“(g) This section shall be part of and supplemental to the Kansas consumer protection act.”
Frontier’s initial argument is that it is not the party which “submitted” the order to change Doty’s personal interexchange carrier.
Frontier first contends the word “submit” in K.S.A. 2000 Supp. 50-6,103(b) should be defined by the Federal Communications Commission (FCC) regulations, 47 C.F.R. § 64.1100 et seq. (1999) because it is not defined by the Kansas Act. Second, because K.S.A. 2000 Supp. 50-6,103 expressly incorporates FCC regulations, any conflict would be contrary to legislative intent. This argument is part and parcel of Frontier’s federal preemption argument. Finally, Frontier argues that the 2001 amendments to K.S.A. 2000 Supp. 50-6,103(b) show that the legislature did not intend, prior to the amendments, to penalize the innocent submission by a personal interexchange carrier of a change request. See L. 2001, ch. 115, § 1.
Both parties agree our standard of review over issues of statutory construction is plenary. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000). We have pronounced several maxims for the interpretation of statutes:
“It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. [Citation omitted.] The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. . . . when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. [Citation omitted.]” In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
Also, under our rules of construction, “ordinary words are to be given their ordinary meaning.” Matjasich v. Kansas Dept. of Human Resources, 271 Kan. 246, 246, 21 P.3d 985 (2001).
K.S.A. 2000 Supp. 50-6,103(b) states no “telecommunications carrier shall submit ... an order to change . . . without . . . the express authorization” of the consumer. “Submit” means to “commit (something) to the consideration or judgment of another.” Webster’s II New Riverside University Dictionary 1154 (1st ed. 1984). Construing the statute under its plain meaning, Frontier’s transmitting the unauthorized change order constituted a submission of the false and unauthorized request.
With the plain meaning rule resulting in a recovery by Doty, Frontier argues that “submit” as used in subsection (b) of K.S.A. 2000 Supp. 50-6,103 must be construed to follow the definition of “a submitting carrier” as set forth in 47 C.F.R. § 64.1100(e)(1) (1999), which stated:
“A submitting carrier is generally any telecommunications carrier that requests on the behalf of a subscriber [consumer] that the subscriber s telecommunications carrier be changed, and seeks to provide retail services to the end user subscriber. A carrier may be treated as a submitting carrier, however, if it is responsible for any unreasonable delays in the submission of carrier change requests or for the submission of unauthorized carrier change requests, including fraudulent authorizations.”
This regulation provides definitions for the terms used in 47 U.S.C. § 258 (1994 ed. Supp. V. 2000), which is a part of the 1996 Federal Telecommunications Act. Frontier claims it would not fit within this definition because it did not seek to provide retail services to Doty (although the facts indicate Doty’s billing was generated by Frontier). Under Frontier’s argument, it cannot be liable as an intermediary carrier, that merely passes along the unauthorized request and is in fact an “executing carrier,” which was defined in 47 C.F.R. § 64.1100(e)(2) (1999) as:
“An executing carrier is generally any telecommunications carrier that effects a request that a subscriber s telecommunications carrier be changed. A carrier may be treated as an executing carrier, however, if it is responsible for any unreasonable delays in the execution of carrier changes or for the execution of unauthorized carrier changes, including fraudulent authorizations.”
Frontier points to subsection (c) of K.S.A. 2000 Supp. 50-6,103, which it claims incorporates the federal regulations promulgated under the 1996 Federal Telecommunications Act. This contention is untenable. The Kansas statute does not adopt the federal definitions for words in the Kansas Act. The regulations above quoted were not promulgated until February 1999, which was almost a year after the Kansas Act was passed. In addition, the express language of subsection (c)(3) of K.S.A. 2000 Supp. 50-6,103 states: “No . . . telecommunications carrier . . . shall . . . use any methods not approved by the [FCC] statutes, rules and regulations (as in effect on the effective date of this act).” (Emphasis added.) Frontier s attempt to utilize the federal regulations to define “submit” is not justified by the language of K.S.A. 2000 Supp. 50-6,103(c)(3).
Additionally, the restrictions in subsection (c) are separate from those in subsection (b), and, while we do construe statutes as a whole, it does not alter our duty to follow legislative intent as clearly expressed. See In re Marriage of Killman, 264 Kan. at 42-43. It must be noted that subsection (b) relates to the submission of a change order, while the operative word in subsection (c) is “verify." Even if 47 C.F.R. § 64.1100(e)(1) had been implicitly adopted by K.S.A. 2000 Supp. 50-6,103(c)(3) (which we note it could not have been), the second sentence says “a carrier may be treated as a submitting carrier ... for the submission of unauthorized carrier change requests.”
In 2001, the Kansas Legislature amended K.S.A. 2000 Supp. 50-6,103(b) to read: “No local exchange carrier or telecommunications carrier shall submit or cause to be submitted to a local exchange carrier an order to change a consumer’s telecommunications carrier or local exchange carrier to another carrier without having obtained the express authorization of the consumer authorized to make the change.” L. 2001, ch. 115, § 1(b). Frontier contends this change substantiates its argument that the prior statute was not intended to penalize innocent intermediaries for merely passing along change requests to the local exchange carrier.
The 2001 amendments to K.S.A. 2000 Supp. 50-6,103(c)(3) further provide:
“(c) No local exchange carricrr^ekreommunications carrici-or-fchtrd party utilized to vcrify-an-eráef-to-changc a consumer s tclccommunications-carricr or-Ioeai exchange carrier to another earner supplier shall:
“(3) use any methods not approved by statute, regulations cf the federal communications commission statutes;-rules and regulations or federal trade commission (as in effect on the effective date of this act) or state corporation commission rules and regulations to change a consumer’s telecommunications carrier or local exchange carrier to another carrier.” L. 2001, ch. 115, § 1.
Frontier argues this change causes all of the federal regulations it relies on to be required to be deemed applicable, and shows that 50-6,103(c)(3) was not intended to be limited to those regulations in effect in 1998.
We believe the better-reasoned result is to hold that the 2001 amendments to 50-6,103(c)(3) limit the application of FCC statutes and regulations to those that existed at the effective date of the amended act, which would not apply those regulations to the instant case. This gives meaning to the existing language of K.S.A. 2000 Supp. 50-6,103(c)(3), but does not require previously nonexistent federal regulations to be now considered.
As to the addition of the “or cause to be submitted” language of 50-6,103(b), Frontier’s requested interpretation suggests that prior narrow language is now greatly broadened. As we have previously discussed, the 1998 provisions of K.S.A. 2000 Supp. 50-6,103(b) apply to Frontier, and we do not believe that result is changed by the 2001 amendments. While there may be a colorable argument that we should not apply the plain definition of “submit” to the 1998 statutory language, the 2001 amendments appear to leave no question that any “supplier” who “submits or causes to be submitted” unauthorized requests is in violation of the Kansas Act, which is designed to protect Kansas consumers.
Legislative history would not seem to indicate there was any intent to change the effect and scope of K.S.A. 2000 Supp. 50-6,103 by the 2001 amendments. The Deputy Attorney General of the Consumer Protection Division, one of the main proponents of and contributors to the bill, stated “[T]he bill would provide cleanup language for the current statute.” Unauthorized Change of Consumer’s Telephone Company or Addition of Unauthorized Telephone Services: Hearings on H.B. 2099 Before the House Comm. on Utilities, Reg. Sess. (2001). This comment suggests that the statute was to be broadly applied under the 1998, statutory wording and that the same result was desired under the 2001 amendments. “Cleanup language” is not indicative of an intent to change the basic construction of the statute. The added language might in fact be deemed to clarify that entities such as switchless resellers (IEC) that do not actually submit the change to the local exchange carrier but cause the request to be instigated should also be held liable.
It has not been argued to us whether the use of the word “supplier” in the 2001 amendments to subsection (c) in lieu of the stricken language has any significance, but this appears to carry out the intent of liability within the chain of submission where a Kansas consumer is slammed.
We hold that the 2001 amendments do not change our construction of the 1998 statutory provisions which we have made herein. K.S.A. 2000 Supp. 50-6,103 applies to Frontier’s actions and justifies the penalty assessed and the attorney fees allowed, so long as the 1996 Federal Telecommunications Act has not preempted the entire area, preventing the Kansas Act from having any force or effect.
Frontier contends that the federal regulations do not permit it to verify the consumer authorization of personal interexchange carrier change requests. Since K.S.A. 2000 Supp. 50-6,103(b) penalizes intermediary or wholesale carriers who submit unauthorized requests from the retailer to the local exchange carrier, Frontier argues that compliance with both laws is impossible and that the Kansas statute must be preempted by the federal Act. This issue involves questions of statutory interpretation as well as preemption, both questions of law over which this court exercises de novo review. Lindemuth v. Goodyear Tire & Rubber Co., 19 Kan. App. 2d 95, 99, 864 P.2d 744 (1993).
In dealing with a federal preemption challenge, Justice Allegrucci, speaking for a unanimous court, succinctly stated in McShares, Inc. v. Barry, 266 Kan. 479, Syl. ¶ 1, 970 P.2d 1005 (1998), cert. denied 526 U.S. 1158 (1999):
“Absent an express statement by Congress that state law is preempted, preemption occurs where there is an actual conflict between federal and state law, where compliance with both federal and state law is, in effect, physically impossible, where Congress has occupied the entire field of regulation and leaves no room for states to supplement federal law, or when the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress.”
Also see Kansas ex rel Stovall v. Home Cable, Inc., 35 F. Supp. 2d 783, 787-88 (D. Kan. 1998), where the three circumstances of preemption were stated to be:
“First, Congress can define explicitly the extent to which its enactments pre-empt state law. [Citation omitted.] ....
“Second, in the absence of explicit statutory language, state law is pre-empted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively. . . .
“Finally, state law is pre-empted to the extent that it actually conflicts with federal law. Thus, the Court has found pre-emption where it is impossible for a private party to comply with both state and federal requirements . . . .[Citations omitted.]”
Frontier’s argument of preemption is, as we have said, intertwined with its first issue where we set forth the definition of a submitting and executing carrier. Frontier argues that it is a “executing carrier” whose obligations are specified in 47 C.F.R. § 64.1100(a)(2) (1999), as follows:
“An executing carrier shall not verify the submission of a change in a subscriber’s selection of a provider of telecommunications service received from a submitting carrier. For an executing carrier, compliance with procedures prescribed in this part shall be defined as prompt execution, without any unreasonable delay, of changes that have been verified by a submitting carrier.”
Under this restriction, Frontier contends it may not request proof of consumer consent and incur unnecessary delay of the change order. This is contended to run directly counter to the application of K.S.A. 2000 Supp. 50-6,103, requiring state law to be preempted.
This entire argument breaks down immediately in that the change which was made here was never verified, authorized, asked for, or requested, or in any manner involved the consumer until the results of the change order became apparent. This is also sup ported by the 1998 FCC order, FCC 98-334, upon which the regulations in question were based, where the FCC stated:
“We conclude that the executing carrier should be the carrier who has actual physical responsibility for making the change to the subscriber s service, rather than a carrier that is merely forwarding a carrier change request on behalf of a subscriber.” Second Report and Order and Further Notice of Proposed Rulemaking, 14 FCC Red 1508, 1565 (1999).
Frontier did not have physical responsibility of changing Doty’s carrier; the local exchange carrier (Southwestern Bell) performed that task.
To allow Frontier to participate and profit through its contractual agreements with IEC — yet insulate itself from any responsibility — flies in the face of the intent of the Kansas Legislature when it enacted 50-6,103.
Doty argues that K.S.A. 2000 Supp. 50-6,103 does not impose liability based on label or classification but, rather, on actions. He argues that since Frontier is actually a submitting carrier rather than an executing carrier, it is not prohibited from verifying the change order request. He convincingly argues that Frontier submitted the totally invalid change order to his telecommunications carrier.
While the result we reach is in no manner based on or grounded in the contract between Frontier and IEC, that contract does contain an indemnification provision that provides: “Purchaser shall defend and indemnify Frontier against any and all claims, including without limitation, any End-User, LEC or regulatory agency claims arising from or related to Purchaser’s failure to use or provide valid LOAs.” (LOA is the abbreviation for Letter of Agency, the document which is required to be executed by a consumer authorizing the change of the consumer’s long-distance carrier.) It thus appears that Frontier anticipated the exact type of a claim made in this case. We do not, however, give credence to this provision as being determinative of the preemption question in any way.
While we do not minimize the parties’ attempt to find persuasive authority in the numerous cases cited by both sides, we do not believe any of them to be determinative. Many are rate cases, oth ers involve actions of state regulatory agencies, and none is sufficiently on point to be relied upon for our ultimate decision.
When the purpose of the 1996 Federal Telecommunications Act is reviewed from a reading of 47 U.S.C. § 151, (1994 ed., Supp V. 2000), with its broad language of making available a “rapid, efficient, Nationwide, and world-wide wire and radio communications service,” there is still no showing that any attempt at preemption was apparent. And, as has been often said: “In the absence of express preemption, there is a strong presumption that Congress did not intend to displace state law. Maryland v. Louisiana, 451 U.S. 725, 726, [68 L. Ed. 2d 576, 101 S. Ct. 2114], 2118 (1981); Palmer v. Liggett Group, Inc., 633 F.Supp. [1171] at 1173; see also Silkwood [v. Kerr-McGee Corp.], 464 U.S. [238] at 251, [78 L. Ed. 2d 883] 104 S. Ct. [615] at 623.” Graham v. Wyeth Laboratories, 666 F.Supp. 1483, 1489 (D. Kan. 1987). While some interference is unavoidable, Kansas law does not prevent the achievement of Congress’ goals, and does not appear to be in direct conflict with them. As previously held by this court regarding preemption: “We said that the conflict between the two laws must be positive and direct in order to make coexistence of the two laws an impossibility. It is necessary that the state law in its application to the same field contravene federal public policy or cause a different result or consequence. [Elkins v. Showcase, Inc.] 237 Kan. [720] at 727, [704 P.2d 977 (1985)]; see Watkins v. H.O. Croley Granary, 555 F.Supp. 458, 460 (N.D. Ga. 1982).” Hartford Accident & Indem. Co. v. American Red Ball Transit Co. 262 Kan. 570, 576, 938 P.2d 1281, cert. denied 522 U.S. 951 (1997).
It can be argued that to permit a statutory fine of $5,000 to $20,000 in addition to the punishment for slamming in the federal regulations could have a chilling effect on the “rapid” execution of personal interexchange carrier change requests and an unreasonable effect on the telecommunications industry. However, the potential profits from widespread slamming and the negative effect on consumers must also be entitled to considerable consideration.
Of interest are the provisions of 47 U.S.C. § 253 (1994 ed., Supp. V. 2000), which preserve in the states the right to protect the interests of consumers, although that savings clause is limited to the context of state laws which may prohibit carriers from providing telecommunications services:
“Removal of barriers to entry
“(a) In general. No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.
“(b) State regulatory authority. Nothing in this section shall affect the ability of a State to impose, on a competitively neutral basis and consistent with section 254 of this title, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers.”
Interestingly, 47 U.S.C. § 253 also provides that if a state has overstepped its bounds, the FCC has the power to require the state to correct its action:
“(d) Preemption. If, after notice and an opportunity for public comment, the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b) of this section, the Commission shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency.”
Kansas law, if seen as a barrier to a telecommunication carrier’s ability to enter or stay in the market, would appear to fall under the safe harbor of protecting the rights of Kansas consumers. Certainly, lawful action by any “supplier” of telecommunications services is not prohibited or restrained by K.S.A. 2000 Supp. 50-6,103.
We conclude that federal preemption did not exist under all of the facts of this case and that the trial court’s decision is correct.
Doty’s counsel has properly submitted a motion pursuant to Supreme Court Rule 7.07(b)(2000 Kan. Ct. R. Annot. 52) for attorney fees and costs on appeal in the amount of $3,348.95, which under our holding affirming the trial court is granted. On remand, this amount shall be included as additional attorney fees allowed under K.S.A. 2000 Supp. 50-6,103.
Affirmed and remanded with instructions. | [
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The opinion of the court was delivered by
Lockett, J.:
Defendant appeals convictions of felony murder, attempted aggravated robbery, three counts of aggravated battery, and an aggravated weapons violation claiming (1) the district court violated his Sixth Amendment right to confrontation by refusing to allow the defendant to introduce evidence that a witness previously lied in a statement to police; (2) the prosecutor violated defendant’s Fourteenth Amendment right to due process by asking defendant to comment on the credibility of the State’s witnesses; and (3) the district court failed to instruct the jury it must unanimously agree as to the means or acts by which the defendant committed felony murder.
On July 26,1998, Garden City, Kansas, police officer Troy Davis was dispatched to apartments at 1819 Comanche in Garden City for a call of shots fired. Davis observed numerous individuals standing in the parking lot and a young Hispanic male in his 20’s lying on his back between some cars. The man was Jesus Miguel Terrazas, a/k/a Eddie Sanchez. Terrazas had a single gunshot wound.
The incident that resulted in the death of Terrazas began a short time prior to the shooting. The parking lot was lighted. There were two parties going on in the apartment complex parking lot. One party consisted of several Hispanic men, including Jesus Beltran, Ruben Corral, Roberto Baca, Roberto Hernandez, and Terrazas. A group of black and white males, including the defendant Deon Dean, a black male, had gathered near the apartment of Matt Jaramillo.
There are several versions of the events by various witnesses. Generally, the witnesses agree that Jaramillo, who spoke in Spanish, approached the Hispanic group. In an attempt to sell cocaine, Jaramillo produced a small quantity of cocaine. A few of the men tasted the powder. Jaramillo invited them to his apartment for more cocaine. Baca and Corral went with Jaramillo to his apartment. Shortly after they returned, Beltran and Terrazas left in Terrazas’ car to pick up Terrazas’ brother. Beltran was driving.
Bryan Kramer, one of the men with Dean, saw Jaramillo approach the Hispanic men and briefly speak to them. Jaramillo informed Kramer that he had been “ripped off,” i.e., someone had taken drugs from him. Jaramillo told Kramer, Dean, James Elliott, and Terrell Parker that he was going to the Hispanic group to get his money. Jaramillo said, “Don’t let them jump me.”
On the way to the other group, Jaramillo stopped the car driven by Beltran. Jaramillo spoke with Terrazas, who was in the passenger seat. Jaramillo stated that Baca and Corral had robbed him because they did not pay him for the cocaine. Terrazas asked Jaramillo how much money was owed. Jaramillo said that Baca and Corral owed him $10.
Kramer’s version of the events indicates that Terrazas attempted to give Jaramillo $10. Kramer stated that a fight broke out before Jaramillo was able to take the money, and the car sped away at a high speed. Jaramillo, Dean, Kramer, Elliott, and Parker continued to walk down the parking lot. They approached some Hispanic men who were drinking by a truck. Jaramillo spoke in Spanish to a man. A fight broke out. Elhott did not join in the fight.
Kramer stated that after Terrazas obtained a chain from the trunk of his car, Dean pulled a handgun and pointed it at Terrazas. Terrazas started running. One of the men with Jaramillo hit Terrazas and knocked him out. Kramer stated Dean pointed the gun at the Hispanic group and said, “Give me your wallet.” As Kramer started to leave the scene, he saw Dean hit a man in the head with the gun. As Kramer walked away, he heard a gunshot, looked back, and observed Dean and Parker running away. Kramer testified that Elliott was in his car when the gun fired.
Kramer was charged with felony murder, conspiracy to deliver cocaine, sale of cocaine, three counts of aggravated battery, and aggravated robbery. Pursuant to a plea agreement, Kramer pled guilty to two counts of aggravated battery and robbery in exchange for testifying at Dean’s trial.
Elliott, who also testified against Dean, stated that as he was walking back to the apartment, he turned and saw one of the Hispanic men (Terrazas) leaning against a truck. Elliott observed Dean lean around and fire a single shot at Terrazas. After the shot, everyone started running. Elliott testified that Dean stuffed a gun into his pants and ran toward Elliott’s car. A friend, Christy Jeffrey, was in the car. Elliott jumped into the passenger seat. Dean jumped into the driver’s seat and drove the car away.
Another witness, LaBronze “Ken” Garrett, was standing outside of his apartment. Garrett saw the two parties in the complex parking lot. He was not a friend of either group. Garrett stated that without provocation about 15 black men from one group “jump[ed] on” the Plispanic group.
As Garrett watched, some of the Hispanic men ran and others were on the ground “getting stomped.” Some of the attackers began shouting, “[b]last him” and “[sjhoot him. Shoot that fool.” Garrett observed Dean, a former acquaintance of his, with a gun in his hand. The gun fired. Garrett called 911.
After the fight, Baca’s wallet, which contained a Mexican license, an address book, and approximately $250, was missing. Police found Baca’s address book, a business card, and an insurance claim reporting card on the ground at the scene. The officer did not locate Baca’s wallet, money, or license.
Hernandez, the half brother of Terrazas, had little recollection of the fight. He recalled being in the parking lot with his friends when a Mexican-American man (Jaramillo) and several black men approached. After Jaramillo said something about money, Hernandez was struck in the mouth, which cut his lip and left a scar. He was then knocked unconscious and awoke to find his brother lying on the ground.
Corral testified that a group of black men lead by Jaramillo approached his group and began speaking in English. He recognized the English word “money.” Corral observed one of the black men pull a gun, put it to Baca’s head, and then Corral’s head. Corral could not identify the man. Corral was hit in the back of the head, lost consciousness. He fell beneath a truck. The sound of a single gunshot made him regain consciousness. When asked who had been shot, he was told that it was Terrazas.
After the shooting, Dean, Elliott, Shasta Mullen, and Christy Jeffrey left the scene in a car. According to Elliott, Dean asked Christy if she would leave town with him. When Dean asked Elliott if he could take Elliott’s car to Dodge City, Elliott refused. Dean then asked Elliott if he could leave his gun at Elliott’s apartment. Elliot refused. Elliott testified that the gun had originally belonged to him, and he had sold it to Dean prior to the shooting.
Elliott’s brother, Warren, testified that he recalled Dean purchasing the gun from Elliott and had observed Dean carry the gun on at least seven or eight occasions. Dean left Elliott’s apartment while Elliott was out of the room. Dean left the gun on the counter. Elliot testified that when he found the gun on his kitchen counter, he put the gun behind his television, out of the reach of his 2-year-old daughter. The gun was recovered in Elliott’s apartment. Dean’s fingerprint was found on the clip of the gun.
An amended complaint charged Dean with premeditated murder of Terrazas and, in the alternative, felony murder committed in the commission of, attempt to commit, or flight from an inherently dangerous felony, i.e., delivery of cocaine and/or aggravated robbery and/or attempted aggravated robbery of Roberto Baca and/or Ruben Corral and/or Roberto Hernandez; aggravated battery of Roberto Baca; aggravated battery of Ruben Corral; aggravated battery of Roberto Hernandez; and aggravated weapons violation.
Dean testified at trial. Dean admitted that he was involved in the fight instigated by Jaramillo at the apartment complex. When Dean saw Terrazas approach the fight carrying chains, he ran from the scene. Dean denied any involvement in the shooting of Terrazas. Dean was convicted of felony murder, attempted aggravated robbery, aggravated batteiy of Roberto Baca; aggravated battery of Roberto Hernandez; aggravated battery of Ruben Corral; and aggravated weapons violation. Dean appeals.
Sixth Amendment Right to Confrontation
The trial judge refused to permit Dean to introduce evidence that Elliott, who testified he had sold the gun to Dean, had lied as to where Elliott had purchased the gun.
When reviewing a constitutional challenge to the admission of evidence, the appellate court applies the federal constitutional error rule. Under that rule, an error may not be held to be harmless unless the appellate court is willing to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. State v. Lyons, 266 Kan. 591, 598, 973 P.2d 794 (1999).
Dean made two proffers at trial regarding evidence that Elliott had previously made false statements to the police as to where Elliott had originally purchased the handgun. Elliott told police that he purchased the gun from Coyote Pawn Shop. That statement was false. Dean argued that evidence was relevant to show that Elliott was willing to tell the police a convenient story to avoid trouble. The judge ruled that evidence was not relevant.
The second proffer made by Dean was that Elliott had told police in a statement that he had purchased the gun from a licensed firearms dealer. Dean stated that the gun shop owner would testify that he has no record of that sale. The State objected and argued that evidence was not relevant. The trial court ruled that testimony of where Elliott had purchased the gun was a specific instance of conduct tending to prove a character trait of the witness and was inadmissible.
Dean contends that the trial court erred by refusing to allow testimony regarding where the Elliott had purchased the gun. He argues that the evidence was not offered to impugn Elliott’s character, but to question Elliott’s credibility as a truthful witness.
K.S.A. 60-420 provides:
“Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting die credibility of a witness, any party including die party calling die witness may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility.”
K.S.A. 60-422(d) provides that evidence of specific instances of misconduct of a witness relevant only as tending to prove a trait of his or her character is inadmissible where offered for the sole purpose of attacking the credibility of the witness. Evidence of a specific instance of a person’s conduct other than evidence of conviction of a crime is inadmissible to prove a trait of the person’s character. K.S.A. 60-447; Shirley v. Smith, 261 Kan. 685, Syl. ¶ 2, 933 P.2d 651 (1997).
Dean cites Dewey v. Funk, 211 Kan. 54, Syl. ¶ 3, 505 P.2d 722 (1973), to support his position that exclusion of evidence under K.S.A. 60-422 must bow to a defendant’s right to confront his or her accusers. In Dewey, a paternity action, the plaintiff testified that she was a virgin prior to her relationship with the defendant. The defendant offered the testimony of a witness concerning admissions made to her by the plaintiff regarding prior sexual intercourse with other men. The plaintiff objected. The trial court ruled that evidence of sexual intercourse with others at a time beyond the period of conception was inadmissible.
As an offer of proof presented to the court outside the presence of the jury, the witness testified that the plaintiff admitted she had sexual intercourse with at least three men prior to the incident with the defendant. The Dewey court concluded that the witness should have been permitted to testify as to these admissions. It stated that the testimony of the plaintiff that she was a virgin was highly prejudicial to the defendant. The Dewey court observed that a litigant who draws from his or her own witness irrelevant testimony which is prejudicial to the opposing litigant ought not to object to its contradiction on the ground of its irrelevancy. 211 Kan. at 57. It concluded that when a party introduces inadmissible and prejudicial evidence, the opposing party may introduce similar evidence necessary for removing an unfair prejudice.
Dewey has no relevance to this case. Dewey refers to the right of a defendant to bring in specific instances of prior acts to rebut evidence the opposing party introduced on a collateral matter that, if left unrebutted, would unfairly prejudice the defendant. Here, the State did not offer into evidence information where Elliott had purchased the gun. Therefore, there was no need for Dean to introduce evidence that Elliott had made a false statement to the police regarding where he had purchased the gun.
Dean also cites State v. Nixon, 223 Kan. 788, 576 P.2d 691 (1978), State v. Beans, 247 Kan. 343, 800 P.2d 145 (1990), and State v. Macomber, 241 Kan. 154, 734 P.2d 1148 (1987), to support his contention that prior acts of misconduct are admissible to show that the witness lied in the present case. The cases cited are factually distinguishable from this case in that in each of those cases, the defendant sought to introduce specific instances of misconduct to rebut untrue testimony that had been presented to the jury. As noted previously, Elliott did not testify to the jury that he bought the gun from a licensed firearms dealer. Therefore, there was no evidence presented to the jury for Dean to rebut.
Elliott admitted that he was the prior owner of the gun. Where he had purchased the gun was not relevant. The evidence was inadmissible as a specific instance of a prior bad act offered to attack the witness’ credibility. The trial court did not err in refusing to admit evidence that Elliott did not purchase the gun from a licensed firearms dealer.
Prosecutorial Misconduct
Dean contends that the prosecutor committed misconduct during his cross-examination by repeatedly asking Dean to comment on the truthfulness of witnesses who had testified. Dean points to the following questions asked of him by the prosecutor:
“Q. Now it’s been testified to earlier that Christy Jeffery told police that you told her that you took that wallet from die crime scene. Did you hear that?
“A. Yes, I heard that.
“Q. And Christy Jeffery was telling the trudi when she said that, wasn’t she?
“A. No, she was not.
“Q. Is there any reason that Christy Jeffery would want to lie about something like that?
“A. (Pause.)
“MR. MOORMAN: Your Honor, that does call for speculation on part of the witness, and we’d object.
“THE COURT: Sustained.
“Q. And when you left the scene you handed Shasta Mullen a billfold, didn’t you?
“A. No, I did not.
“Q. So Shasta Mullens [sic] would be also lying, is that your testimony?
“A. I -I guess.”
“Q. So, if Mr. Elliott testified that you and Christy talked about leaving for Dodge, you are saying that he wasn’t telling die truth?
“A. Yeah, basically.”
“Q. If Christy Jeffery told police that you took a wallet from — from diat scene, are — is it your testimony that she would not be telling die truth?
“A. Yes. I didn’t take a wallet.
“Q. If Mr. Garrett testified that he saw you with a gun on diat date and diat you fired tiiat gun. It’s your testimony that he wouldn’t be correct . . . ?
“A. Yeah. I know for a fact that he didn’t see me.
“Q. And if Biyan Kramer testified that he saw you with a gun in your hand and pointing it at individuals, it’s your testimony that Bryan Kramer wouldn’t be correct either, is it?
“A. Yeah. Biyan said he seen me doing a lot of stuff.
“Q. And if Mr. James Elliott said he saw you point the gun and fire, it’s your testimony that he wouldn’t be telling the truth, either, isn’t it?
“A. Yeah. He knows he did it.
“Q. So, it’s your testimony that you’re telling the truth and everyone else is — is lying; isn’t that correct?
“A. I guess.”
There was one objection to the prosecutor’s questions. The objection was that the question called for speculation on the part of the witness. The objection did not specifically state that the questions required the witness to pass on the credibility of other witnesses.
Dean submitted additional authority pursuant to Supreme Court Rule 6.09(b) (2000 Kan. Ct. R. Annot. 41), the case of State v. Manning, 270 Kan. 674, 19 P.3d 84 (2001). In Manning, the defendant did not object to the manner in which he was cross-examined by the State.
The Manning court observed that the lack of objection to the trial court does not preclude review by this court in part because of the unique role of the prosecutor and stated:
“A prosecutor should be mindful of his or her role in criminal proceedings. The United States Supreme Court discussed the role of a prosecutor in Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935), and stated:
‘[A prosecuting attorney] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, die twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute widi earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.’ ” Manning, 270 Kan. at 697-98.
The Manning court reviewed many cases of other jurisdictions to hold that “[questions which compel a defendant or witness to comment on the credibility of another witness are improper. It is the province of the jury to weigh the credibility of the witnesses.” Manning, 270 Kan. at 698.
In Manning, the improper questions asked by the prosecutor were tempered by Manning’s responses. The first two times the prosecutor asked Manning if other witnesses were lying, Manning indicated that he “ ‘didn’t say it.’ ” The third and fourth time the prosecutor asked Manning if other witnesses were lying, he responded, “ ‘Most likely.’ ” The fifth time the prosecutor asked, “ ‘They’re all lying, right?’ ” but Manning did not directly respond. Manning, 270 Kan. at 700.
The Manning court held that although the questions asked by the prosecutor were wholly improper, given Manning’s responses and the evidence against him, the improper questions did not prejudice the jury against Manning and deny him a fair trial. Manning, 270 Kan. at 702.
Here, the prosecutor committed misconduct by requiring Dean to comment on the credibility of the State’s witnesses. Dean’s answers to the questions about the other witnesses’ credibility did not temper the effect of the misconduct.
This court recently discussed prosecutorial misconduct which occurred during closing arguments in State v. Pabst, 268 Kan. 501, 996 P.2d 321 (2000). In Pabst, this court held that prosecutorial misconduct may be reviewed on appeal “regardless of whether the issue of prosecutorial misconduct is preserved by an objection at trial.” 268 Kan. 501, Syl. ¶ 2. Our analysis of prosecutorial misconduct requires a finding that the actions of the prosecutor constitute “plain error” in the event there is no objection. The actions of the prosecutor must be “so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal.” 268 Kan. 501, Syl. ¶ 3. The standard of review discussed and applied in Pabst also applies when a prosecutor is cross-examining a defendant who has chosen to take the stand. State v. Manning, 270 Kan. 674, 697, 19 P.3d 84 (2001).
Just as in Manning, the evidence against Dean is overwhelming. For this reason, the prosecutor’s misconduct does not require reversal.
Verdict
In multiple acts cases, several acts are alleged and any one of the acts could constitute the crime charged. State v. Timley, 255 Kan. 286, Syl. ¶ 2, 875 P.2d 242 (1994). When the prosecution presents evidence of several acts that could form the basis of one count charged, either the State must inform the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specific criminal act. 255 Kan. at 289.
Dean contends he was deprived of his right to jury unanimity because the jury instructions listed in the alternative multiple acts of attempted robbery to support the charge of felony murder and because the jury was not instructed to unanimously agree on the act by which he committed attempted robbery. Dean asserts that the inclusion of three possible victims in the robbery instruction and the lack of unanimity instruction regarding which victim the jury found Dean to have actually attempted to rob, violate Dean’s right to a unanimous verdict.
To analyze Dean’s complaint, we must review the jury instructions for felony murder and aggravated robbery, and attempted aggravated robbery, which is the underlying felony for the felony-murder conviction.
The felony-murder jury instruction provided, in part:
“The defendant is charged with the crime of murder in the first degree. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant killed Jesus Miguel Meraz-Terrazas a/k/a/ Eric Sanchez a/k/a/ Eddie Sanchez.
“2. That such killing was done while in the commission of or attempting to commit or flight from the crime of aggravated robbery.
“3. That diis act occurred on or about the 26th day of July 1998, in Finney County, Kansas.” (Emphasis added.)
Dean was not charged with aggravated robbery. However, because Dean was charged with attempted aggravated robbery, the judge instructed on the elements of aggravated robbery to assist the jury in its consideration of whether Dean attempted that crime:
“To establish the charge of aggravated robbery, each of the following claims must be proved:
“1. That the defendant intentionally took property from the person of Roberto Baca, Ruben Corral or Roberto Hernandez;
“2. That the taking was by threat of bodily harm to his or their person;
“3. That the defendant was armed with a dangerous weapon, a gun; and,
“4. That this act occurred on or about the 26th day of July, 1998, in Finney County, Kansas.” (Emphasis added.)
The elements of attempt to commit aggravated robbery were set out in the jury instructions as follows:
“The defendant is charged with the crime of an attempt to commit aggravated robbery. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant performed an act toward the commission of the crime of aggravated robbery;
“2. That the defendant did so with the intent to commit the crime of aggravated robbery;
“3. That the defendant failed to complete commission of the crime of aggravated robbery; and,
“4. That this act occurred on or about the 26th day of July, 1998, in Finney County, Kansas.”
The trial court instructed the jury that one of the elements of felony murder was that the “killing was done while in the commission of or attempting to commit or flight from the crime of aggravated robbeiy,” and the underlying felony conviction, at tempted aggravated robbery, was alleged to have been committed against one of three persons or all of three persons.
Dean objected at the instructions conference to the inclusion of the names of Ruben Corral and Roberto Hernandez in the aggravated robbery instruction. Dean argued that there was no evidence presented that property was taken from Corral or Hernandez. The judge responded by noting that the charge was attempted robbery rather than robbery. The implication being that it was not necessary to prove that property was actually taken from Corral or Hernandez for the jury to consider whether Dean attempted to rob these men.
The jury found Dean guilty of felony murder and attempted aggravated robbery, the underlying felony for the felony-murder conviction. The verdict form did not provide for the jury to unanimously find or identify which of the three persons listed in the instructions it found Dean attempted to rob. The verdict form merely states: “We, the jury, find the defendant GUILTY of attempted aggravated robbery.”
Dean argues that the result is similar to State v. Linn, 251 Kan. 797, 800, 840 P.2d 1133 (1992) (superceded by statute on other grounds, State v. Hedges, 269 Kan. 895, 8 P.3d 1259 [2000]).
In Linn, the defendant was charged and convicted of felony murder. The underlying felony for the murder charge was aggravated burglary. In a separate count, the defendant was charged with aggravated burglary. The charge of aggravated burglary alleged that the defendant entered or remained in the home “ ‘with intent to commit a felony of theft therein.’ ” 251 Kan. at 799. The State presented evidence that the defendant entered the residence with the intent to commit one of three crimes, theft, aggravated battery, or robbery, as the underlying felonies for the charge of aggravated burglary. The Linn court concluded that the district court erred in failing to list the specific underlying felonies and their elements for the charge of burglary when the instruction stated that the jury must find that the defendant entered or remained within the residence “ ‘with the intent to commit a felony or theft therein.’ ” The error deprived the defendant of a fair trial, and the convictions of felony murder and aggravated burglary were set aside, and the defendant was granted a new trial.
Here, the conviction of felony murder is premised on the finding that Dean committed the attempted robbeiy of Baca, Hernandez, or Corral. Dean asserts it cannot be determined from the verdict form which one or all of the alleged attempted robberies the juiy found Dean to have committed. Furthermore, the jury was not instructed that it must be unanimous in determining which of the attempted robberies Dean committed.
The State attempts to analogize this case to a bank robbeiy where a bank robber enters the bank and orders the bank patrons to turn over their valuables. In that scenario, the robber is apprehended prior to actually taking any valuables from the patrons. The State contends that under those facts, the robber would be guilty of attempted robbery, and the names of the individuals he or she attempted to rob would be of no legal significance. The State cites no case where this court has upheld a conviction based on a general act of attempted robbeiy without specific victims. Furthermore, the State’s argument begs the question presented because, in this case, the judge in his robbeiy instruction specified the names of the individual victims Dean attempted to rob.
In State v. Hill, 271 Kan. 929, 26 P.3d 1267 (2001), the court set forth the appropriate analysis for reviewing a claim that the defendant’s right to a unanimous verdict was violated by the trial court’s failure to give a unanimity instruction with respect to multiple acts of alleged rape. The Hill court rejected a structural error analysis and adopted a two-step harmless error analysis. The first step of the harmless error analysis is to determine whether there is a possibility of jury confusion from the record or if the evidence showed either legally or factually separate incidents. Incidents are legally separate when the defendant presents different defenses to separate sets of facts or when the court’s instructions are ambiguous and tend to shift the legal theory from a single incident to two separate incidents. Incidents are factually separate when independent criminal acts have occurred at different times or when the later criminal act is motivated by “a fresh impulse.” If juiy confusion is not shown under the first step, the second step is to determine whether the error in failing to give a unanimity instruc tion was harmless beyond a reasonable doubt with respect to all acts alleged. 271 Kan. at 939.
In Hill, the defendant was charged with one act of rape. The evidence presented at trial included an allegation that the defendant was guilty of more than one act of rape of the victim. On appeal, the defendant contended that the trial court committed reversible error by failing to instruct the jury that its verdict must be unanimous regarding which of the two acts constituted the rape conviction. The district court gave a general unanimity instruction; however, the court did not instruct the jury that its verdict must be unanimous regarding which of the two acts constituted the rape charged. The Hill court noted that the evidence presented as to both acts of rape were materially identical and the defendant did not present a separate defense or offer materially distinct evidence of impeachment regarding a particular act. Instead, the defendant presented a general denial of participation in any wrongful conduct; therefore, there was no reason to assume jury confusion. The Hill court held that under these circumstances, the lack of a specific unanimity instruction was harmless error. 271 Kan. at 940.
Here, we note that in addition to instructions on the elements of the crimes charged, the jury was instructed as follows:
“Instruction No. 3
“Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may be convicted or acquitted on any or all of the offenses charged. Your finding as to each crime charged must be stated in a verdict form signed by the Presiding Juror.”
Instruction No. 23 provided, in part:
“Your verdicts must be founded entirely upon the evidence admitted and the law as given to these instructions.
“Your agreement upon a verdict must be unanimous.”
There is sufficient evidence of an attempted robbery of Baca, Corral, and Hernandez. Baca’s wallet and money were taken during the fight, and witnesses overheard references to “money” directed at each of these men during the fight. Dean did not present a separate defense or offer materially distinct evidence of impeach ment regarding a particular act. Instead, Dean presented a general denial of participation in any wrongful conduct; therefore, there was no reason to assume jury confusion. Dean was convicted of only one count of attempted aggravated robbery, which is sufficient to support the conviction of felony murder. Under these circumstances, the lack of a specific unanimity instruction was harmless error.
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The opinion of the court was delivered by
Lockett, J.:
Defendant appeals his conviction of premeditated first-degree murder, an off-grid felony, and his hard 40 sentence, claiming that (1) the evidence was insufficient to conclude that the victim died as a result of the shooting and (2) his right to confrontation was violated by admitting audiotapes into evidence without playing them before the jury. He further claims that the trial court erred by (1) admitting autopsy photographs, (2) admitting gang evidence without a limiting instruction, (3) failing to give an informant instruction, (4) failing to give an accomplice instruction, (5) allowing prosecutorial misconduct in closing argument, (6) committing cumulative trial errors, and (7) imposing the hard 40 sentence. Finally, he contends that the hard 40 sentencing provisions violate the Sixth and Fourteenth Amendments to the Constitution.
On October 4,1995, at approximately 11:30 pm, Tiamesha Bell and her 2-year-old daughter, Brentashia, Debra McDonald, and Deandre Parker drove to a QuikTrip convenience store so McDonald could make a telephone call and Bell could shop. Parker, a member of a gang known as the Second Street gang, remained in the car with Brentashia.
While Bell was in the store and McDonald was using a telephone outside the store, several gunshots were fired in the parking lot and into the car where Parker and Brentashia were waiting. Two shots struck Parker in the arm. One shot struck Brentashia, entering the back of her head and exiting the front. The wounded Parker left Bell and McDonald and immediately drove to a hospital to get help for Brentashia.
Wichita police officer Steve Martin encountered Parker in the parking lot of Wesley Hospital. Parker exited his car and ran through the parking lot screaming hysterically, “I can’t believe they shot that baby. The motherfuckers shot that baby. I can’t believe they shot my baby.” While striking himself on the head, Parker shouted, “Just kill me, just kill me.”
Officer Martin, concerned that a baby was in jeopardy, opened the front passenger door of Parker’s car and found Brentashia on the floorboard. Brentashia appeared to have an exit wound to the forehead. Although brain matter was oozing from the center of her forehead, the child was breathing. Hospital emergency personnel administered emergency care and placed the child on life-support.
The child’s mother arrived a short time later. After consulting with the doctors as to her child’s condition, the mother made the decision to “unplug” all the life support mechanisms attached to her child. Two-year-old Brentashia ceased to breathe.
No one identified the shooter for several years. Detective Michael Hennessy of the Wichita Police Department continued to pursue leads in the case. Among the suspects investigated by Hennessy was the defendant, Corey Gholston.
Gholston was a member of the Neighborhood Crips, a rival gang of Second Street. The investigation led to two witnesses, Kim Berger and Tiara Carolina. The witnesses informed the investigating officer that on the night of the shooting, they had been drinking heavily. They picked up Gholston and another man (the identity of the second man is unclear) in a stolen white van. The group went to the QuikTrip to buy blunt sticks (cigars hollowed out and filled with marijuana). When they arrived at the QuikTrip, they saw a rival gang member (Parker) sitting in a car in the parking lot. Berger drove the van around the QuikTrip and parked on a side street because she was either wary of a confrontation with a rival gang member or Gholston had instructed her to do so.
Gholston, the only one in the group old enough to legally buy tobacco products, exited the van to buy the cigars. When Gholston was a short distance from the parked van, shots rang out. Gholston ran back to the van. The van and all the cars at the QuikTrip quickly sped from the scene.
The witnesses’ stories differ as to whether Gholston ran from his position in the parking lot before the gunshots stopped or after they stopped. Accounts also differ as to whether Gholston had a gun. There were rumors that after the shooting, Gholston broke a gun in pieces and buried it in an alley.
Antonio Presley, who was incarcerated with Gholston on another matter, told Officer Hennessy that Gholston was remorseful about shooting and killing a baby. In an interview with Kim Berger, Berger stated to Hennessy that Gholston expressed sorrow to her regarding the shooting.
More than 4 years after the shooting, Gholston was charged with the murder of Brentashia. Gholston’s first trial resulted in a mistrial when the jurors were unable to agree on a verdict. A second jury trial resulted in Gholston’s conviction of premeditated first-degree murder. Gholston was sentenced to the hard 40. He appeals both his conviction and sentence, raising numerous issues.
Evidence of Cause of Death
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000). While the State must sustain its burden of proof on each element of an offense charged, some of these elements may be proved by circumstantial evidence and the logical inferences therefrom. State v. Wilkins, 269 Kan. 256, 267, 7 P.3d 252 (1999), (quoting State v. Harper, 235 Kan. 825, 831, 685 P.2d 850 [1984]).
For reasons unknown, the State introduced no medical evidence at trial that Brentashia was brain dead when her mother authorized the Wesley medical personnel to discontinue life-support measures. Gholston asserts that under the circumstances, the cause of the child’s death was a question of fact for the juiy to determine. Gholston contends that because there was no medical evidence establishing that Brentashia was brain-dead before fife support was withdrawn, this court must declare, as a matter of law, that the decision to terminate fife support was or could have been a superseding cause of Brentashia’s death. According to Gholston, because (1) the trial court failed to instruct the jury on the element of causation and (2) there was substantial evidence upon which a jury could have concluded that the termination of life-support was the superseding cause of Brentashia’s death, his conviction must be reversed.
The State contends that lack of evidence regarding the legal status of death is not reversible error. The State cites the Arizona case of State v. Fierro, 124 Ariz. 182, 603 P.2d 74 (1979), for support. The State’s reliance on Fierro is flawed because in that case there was medical evidence that the victim was brain dead before the termination of life support, and, unlike Arizona, Kansas has a statutory definition of death.
For support, Gholston relies on K.S.A. 77-205 and State v. Shaffer, 223 Kan. 244, 574 P.2d 205 (1977).
K.S.A. 77-205 provides:
“An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.”
In Shaffer, the evidence revealed that at approximately 7:30 a.m. on February 29, 1976, a customer of the Louk Oil Station in Topeka discovered Donald Becker, a station employee, lying on the floor of the back room of the station. Becker had been shot in the head but was still breathing and had a definable pulse. Cash and a case of oil were missing from the station. An ambulance arrived at 7:51 a.m. and, at that time, Becker was breathing and had a pulse and blood pressure. Becker arrived at St. Francis Hospital at 8:28 a.m. The emergency room physician made a preliminary observation and immediately called a neurological surgeon, who performed manual tests for signs of life. The neurologist determined Becker had suffered irretrievable brain damage and advised the emergency room physician that Becker could be pronounced dead at any time.
Becker’s mother was told her son was brain dead and that his body could be maintained by artificial means for an indefinite period. Becker’s family made the decision not to prolong his life by a respirator and to allow his kidneys to be transplanted. Prior to the removal of the kidneys, a doctor examined Becker and determined Becker was, in fact, brain dead. At approximately 11 a.m., both kidneys were removed and the respirator was turned off. All bodily functions ceased.
At trial, the defendant called an expert witness who testified that more tests should have been given before death was pronounced. The defendant then argued to the jury that there was evidence that Becker’s death was caused by the subsequent removal of the victim’s kidneys, not the gunshot wound to the head. The defendant also asserted that the Kansas statutory definition of death was unconstitutionally vague because it allowed either of two separate standards, i.e., (1) irreversible cessation of circulatory and respiratory functions or (2) irreversible cessation of all functions of the entire brain, including the brain stem. The Shaffer court rejected that claim and found that determinations made upon “ordinary standards of medical practice,” the standard included in the definition of death statute, K.S.A. 77-202 (Weeks), was sufficient to satisfy constitutional standards. 223 Kan. at 249-50.
The Shaffer court then noted that three medical professionals had independently examined the victim and determined that he was dead prior to removal of organs necessary for the transplant operation. The court observed that K.S.A. 77-202 (Weeks) contained the following sentence: “These alternative definitions of death are to be utilized for all purposes in this state, including the trials of civil and criminal cases, and any laws to the contrary notwithstanding.” 223 Kan. at 246. In 1984, the legislature repealed K.S.A. 77-202 (Weeks) and enacted the current statute, K.S.A. 77-205, which does not contain the sentence quoted.
The Shaffer court concluded by noting that Kansas was the first state to enact a statutory definition of death (K.S.A. 1976 Supp. 77-202). 223 Kan. at 249. Accordingly, the Kansas Act has been widely praised and criticized. By providing the brain death alternative, it recognizes the fact that modem science has developed equipment that makes the traditional cardiac-respiratory test obsolete as the only test. The alternative test is based on practical medical considerations in keeping with advanced medical technology. The Shaffer court concluded that the defendant’s constitutional point was without merit and found that there is no constitutional requirement that a single standard be used. 223 Kan. at 249.
Gholston argues that Shaffer requires medical evidence to establish the cause of death in a criminal trial, and because no evidence as to the cause of death was presented by the State at his trial, the evidence is insufficient to conclude that Brentashia was legally dead from a gunshot wound at the time life-support measures were terminated. We disagree.
While K.S.A. 77-205 provides the legal definition of death, and it is standard practice to include evidence satisfying the legal def inition of death at trial, the lack of evidence specifically satisfying that definition under some circumstances does not create an issue of whether death was caused by the criminal act of the defendant or by a superseding incident.
The evidence presented at Gholston’s trial was indisputable. Someone fired a gun that resulted in Brentashia being shot in the head. A photograph introduced into evidence shows the entrance wound was in the back of her head, and the exit wound, which is larger than the child’s eyes, was between the child’s two eyes and slightly above her eyebrows. In addition to the photograph, two law enforcement officials who observed Brentashia shortly after the shooting noted “brain matter oozing” and blood “rushing” from the exit wound.
Brentashia’s mother, who was with Brentashia in the hospital after the shooting, when asked at trial whether Brentashia was alive at that time, responded, “To be honest, I don’t think so.” Gregory Burge, a crime scene investigator, took pictures at the hospital and the morgue to make a photographic record of the injuries that led to Brentashia’s death. Burge tagged Brentashia’s body on October 7, 1995, 1:38 p.m., and attended the autopsy the next day. Burge testified, without objection, that Brentashia died of a gunshot wound.
At trial, Gholston did not challenge the fact that Brentashia’s death was caused by a gunshot wound. Gholston presented no evidence suggesting there was a superseding cause of death. There is no evidence that Brentashia’s organs were harvested or that her life was terminated to facilitate the surgery to remove the organs. The only issue raised at trial was the identity of the shooter. There was no dispute that Brentashia sustained gunshot wounds to her head.
We refer again to Shaffer. During Shaffer’s trial, Shaffer argued to the jury that Becker’s death was not caused by the gunshot, but it was caused by the operation and removal of the kidney. The following instruction was given the jury:
“ “With regard to Count I of the information, one of the theories of the defense herein is that the kidney transplant was the cause of the death of Donald W. Becker and not the gun shot [sic] wounds to the head. You are instructed in this regard that if you find defendant did cause the wounds to be inflicted on the person of Donald W. Becker then you must determine whether the act of defendant contributed to the death of Donald W. Becker. If you find defendant’s acts contributed to the death of Donald W. Becker then responsibility cannot be avoided by the fact that independent causes such as the negligence of others also contributed to the death. However, if you find the cause of death resulted solely from erroneous treatment by the physicians you must acquit defendant of the offense charged in Count I.’ ” Shaffer, 223 Kan. at 249-50.
The Shaffer court noted that the defendant introduced expert evidence on his theory of insufficient testing to determine the cause and time of death. The court observed that where a person inflicts upon another a wound which is calculated to endanger or destroy life, it is not a defense to a charge of homicide that the alleged victim’s death was contributed to or caused by the negligence of the attending physicians or surgeons. It concluded that under these circumstances the instruction given was a proper statement of the applicable law. 223 Kan. at 250.
Viewing the evidence in a light most favorable to the State, the evidence presented at trial was sufficient for the jury to find that Gholston fired the gun that caused the wound to Brentashia’s head. Under the circumstances, even though the child was breathing and had a pulse before taken off fife support, Gholston is responsible for the child’s death because he inflicted the wound that caused or contributed to the child’s death. Gholston’s claim there was a superseding cause of death fails.
Right to Confrontation
Gholston contends reversible error was committed when audiotapes were admitted into evidence without previously being played before the jury in open court. Gholston asserts this procedure violated the United States Constitution’s Confrontation Clause. For support, Gholston relies on State v. Brockenshire, 26 Kan. App. 2d 902, 912, 995 P.2d 905 (2000).
In Brockenshire, tape recordings of drug transactions without a proper foundation were admitted into evidence. The tapes were not played in open court. The jury listened to the tapes during its deliberations. The defendant had objected to sending the tape for juiy consideration without playing it in open court. On appeal, Brockenshire claimed violation of several rights including his Sixth Amendment right to confront evidence and witnesses against him. The Brockenshire court held that the improper admission of the tapes and defendant’s lack of opportunity to confront the evidence in the presence of the jury contravened his Sixth Amendment right of confrontation. 26 Kan. App. 2d at 912. The Brockenshire court then analyzed the issue under the federal constitutional error rule, found reversible error, and granted Brockenshire a new trial.
Here, Gholston’s defense counsel objected to the admission of the tapes as hearsay rather than lack of foundation. In fact, after extensive questions to the witnesses pointing out inconsistencies between the contents of their taped interviews with Hennessy and their testimony in court, the judge encouraged the defense counsel to play the tapes in open court. After defense counsel declined the invitation to do so, the judge stated: “If we’re going to go through this [extensive cross-examination], let’s just play the tape.” Defense counsel replied:
“It’s not entirely on the tape. A lot of the things are not on the tape. There’s some comments I’m making on this, and this is the only opportunity I’m going to get to cross-examine the matter that is on the tape, and that’s not the only matter I have to do that.”
The judge responded: “But you’re not cross-examining this witness. You’re simply asking him what’s on the tape.” Defense counsel answered, “Well, that’s true to some extent, but a lot of it is intended to simply impeach evidence that came about through Kim Berger, Tiara Carolina, Ron Snyder.” The judge informed defense counsel that she would allow the cross-examination without playing the tape, if defense counsel ceased going line by line through the interviews. Defense counsel agreed, and the cross-examination continued.
During cross-examination, defense counsel pointed out to the jury many inconsistencies on the tapes and contradictions between statements made by the witnesses on the tapes and statements made by those witnesses at trial. At the end of his cross-examination of the State’s witnesses, defense counsel said, “Your Honor, conditioned on the Court’s ruling on [my objections to the admis sion of the content of] these tapes and one additional tape, I don’t have any more evidence.” The “additional tape” alluded to by defense counsel was a taped interview between a State’s witness, Kim Berger, and defense counsel. Defense counsel made a particular objection to some prejudicial information on a taped statement made by one of the State’s witnesses, Antonio Presley. The judge then stated that they would discuss counsel’s objections to the tapes off the record.
The next morning, before reconvening the jury, the judge stated to the parties:
“When we left yesterday, we had — we went back in chambers, and then we had discussed also in court'the admissibility of the tapes. That would be Exhibit 25 — that’s Mr. Presley’s taped statement. I understand, Mr. Kaufman, that you have redacted that pursuant to the request made of you by Mr. Svoboda; is that correct?
“MR. KAUFMAN [Prosecutor]: Yes. Specifically Mr. Svoboda and I spent about 20 minutes last night after court adjourned. He and I went over the transcript of Mr. Presley page for page, and we agreed on specific sections to be redacted. That occurred, and I will also submit a clean copy of the transcript which reflects those areas upon which we agreed pursuant to the redaction, and so I have the redacted tape with me in court today.
“THE COURT: Thank you. And, of course, by making the request for the redactions, Mr. Svoboda, I do note that you do have a standing objection to that, and you’ve made your argument about why that should not be admitted and that you’re not actually conceding that it is admissible in your viewpoint.
“MR. SVOBODA [Defense counsel]: That’s correct, Judge. And not only the tape involving Antonio Presley; I also object to the admissibility of the tapes regarding Kim Berger, Tiara Carolina.
“As the Court is aware, I have filed a memorandum in opposition to admission into evidence of those tapes. I think the Court had indicated that there was going to be — that it would be a part of the record, or would you prefer that I file that, Judge, with the clerk?
“THE COURT: I’ve got it right here. We’ll show it filed with the Court, and it will go along with the file and become a part of the court file. All right.
“MR. SVOBODA: And I also, Judge — Mr. Kaufman and I have discussed the introduction of the tape that we have concerning Kim Berger’s interview with my detective and myself. We understand this Court’s ruling is going to be admissibility of the tapes. I have discussed with Mr. Kaufman a stipulation to foundation, simply for that purpose, retaining my objection on purposes of admissibility.”
The judge ruled:
“THE COURT: All right. Pursuant to my ruling yesterday, I am finding that die redacted statement, Exhibit Number 25, is admissible.
“I find that the tape that was offered yesterday afternoon of Kim Berger with Detective Hennessy will be admissible as well as the taped interview between Mr. Svoboda and Ms. Berger, which has been marked as number 34. That has not been offered yet in front of the jury yet.
“MR. KAUFMAN: Correct.
“THE COURT: The tape of Tiara Carolina’s interview, Exhibit Number 37, is admissible, and Defendant’s Exhibit A [tape of interview between Svoboda and Berger] is admissible as well. I will admit them in front of die jury.”
The judge admitted the tapes when the trial reconvened. When admitting the tapes, the judge reiterated that the prosecutor and the defense had stipulated to foundation, explaining to the jury that the defense would not require that a witness take the stand to authenticate the tape. The judge stated, “[Gholston’s] admitting that [the tapes are] authentic, and that’s what that [stipulation] is.”
At trial, the State’s witnesses were vague in their recollections and no witness unequivocally implicated Gholston as the shooter. The tapes, however, do contain statements that directly implicate Gholston in the shooting, identifying him as the shooter and attributing statements to Gholston where Gholston showed remorse for killing the baby. The tapes, therefore, were important to the prosecution because they contained the primaiy evidence against Gholston. Defense counsel was allowed to energetically and exhaustively impeach the tapes by confronting the witnesses with inconsistencies between the taped interviews and their testimony at trial. Several of the witnesses testified that they implicated Gholston in the taped interviews because Hennessy coerced them by threats to pursue criminal charges against the witnesses for their roles in the shooting.
We find that this case is distinguishable from Brockenshire. Here, the defense stipulated to the foundation for the tapes, and the judge, on numerous occasions, offered to play the tapes in open court and the defense attorney declined to do so. Under these circumstances, the trial court did not err in admitting the tapes for jury consideration without first playing the tapes in open court.
Autopsy Photographs
The trial court has broad discretion regarding the admission of demonstrative photographs. To determine whether such photo graphs should be admitted, a trial court must decide whether they are relevant and whether a proper foundation has been laid. State v. Roberts, 261 Kan. 320, 329, 931 P.2d 683 (1997).
Over defense objection, the trial court admitted photographs of the child in the hospital connected to life support equipment and the autopsy photo depicting the child’s head wound. When admitting the photos into evidence, the trial court stated: “It’s not disputed how [Brentashia] died or what the circumstances were that led to [Brentashia’s] death. However, this jury has the right to get a complete picture.”
Gholston argues that the photographs were irrelevant and inflammatory. Gholston asserts that the photographs were erroneously admitted because there was no disputed fact that the photographs tended to prove and were admitted solely to inflame the emotions of the jury.
It is well established that photographs which serve to illustrate the nature or extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death. State v. Coyote, 268 Kan. 726, 737-38, 1 P.3d 836 (2000).
Even where the defendant concedes the cause of death, the prosecutor has the burden to prove all the elements of the crime charged and photographs to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant and admissible. State v. Clark, 261 Kan. 460, 477, 931 P.2d 664 (1997).
The hospital photograph showed Brentashia’s forehead bandaged, blood soaking through the bandages and life-support equipment attached to her body. The photograph illustrated the nature and extent of the wound inflicted. It showed the medical attention Brentashia required after being shot. It corroborated the police officers’ testimony as to the extent of the injuries they observed upon first seeing Brentashia at the hospital. The first photographs corroborated the testimony of Brentashia’s mother about her observations of Brentashia’s condition. The second photograph showed the exit wound to Brentashia’s forehead. This photograph corroborated the testimony of the police officers who attended the autopsy. The trial judge did not abuse her discretion in admitting the two photographs.
Gang Evidence
At trial, over defense objections, the State introduced substantial evidence of gang membership of several parties and witnesses, including Gholston and Parker. Although defense counsel did not request a limiting instruction regarding admission of the gang affiliation evidence, Gholston now argues to this court that the trial court erred by admitting gang evidence without an appropriate limiting instruction. Gholston analogizes the gang evidence to prior bad acts evidence and asserts that the trial judge’s failure to give a limiting instruction was clearly erroneous.
No party may assign as error the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection, unless the instruction or the failure to give the instruction is clearly erroneous. K.S.A. 2000 Supp. 22-3414(3). Instructions are clearly erroneous only, if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. State v. Evans, 270 Kan. 585, Syl. ¶ 3, 17 P.3d 340 (2001).
This court has consistently held that evidence of gang membership is not evidence of a crime or civil wrong under K.S.A. 60-455. Therefore, K.S.A. 60-455 does not apply and no limiting instruction is required. State v. Jamison, 269 Kan. 564, 568, 7 P.3d 1204 (2000); see also State v. Roberts, 261 Kan. at 326 (where no limiting instruction concerning gang evidence requested, failure to give such an instruction is not clearly erroneous).
Evidence of gang affiliation indicating a defendant is a member of a gang or is involved in gang-related activity is admissible to show a motive for an otherwise inexplicable act. Such evidence, however, is only admissible where there is sufficient proof that such membership or activity is related to the crime charged. State v. Tran, 252 Kan. 494, Syl. ¶ 6, 847 P.2d 680 (1993).
Evidence of gang membership pervaded this trial because gang membership was the motive for an otherwise inexplicable act of shooting and killing a child. In addition, after reviewing the record we find that there is no real possibility the jury would have rendered a different verdict if a limiting instruction had been given. The fact that the court did not provide such an instruction was not error.
Informant Instruction
In a criminal action, a trial court must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence. When considering the refusal of the trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction. State v. Saleem, 267 Kan. 100, 113, 977 P.2d 921 (1999).
At trial, Gholston asserted that Berger, Carolina, and Presley were informants and requested that the jury be instructed: ’’You should consider with caution the testimony of an informant who, in exchange for benefits from the State, offers evidence against a defendant, if that testimony is not supported by other evidence." The trial court did not give the requested instruction; however, the following instruction was given: “It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.”
It is important to note that an informant does not include a person who supplies information after being interviewed by police officers or who gives information as a witness during the course of the investigation or someone who contacts law enforcement officials in hopes of obtaining a benefit by supplying information. State v. Conley, 270 Kan. 18, 25, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001). The crux of the definition of an informant is a person who acts as an agent for the State in procuring information. State v. Barksdale, 266 Kan. 498, 514, 973 P.2d 165 (1999). If someone does not meet the definition of an informant, the trial court is not required to give an instruction on informant testimony.
Berger, Carolina, and Presley were witnesses that provided information to the police during investigation interviews. They never acted as agents for the State to procure information against Gholston. At trial, all three witnesses were examined as to their motivation for giving their various statements. In addition, Detective Hennessy was questioned and cross-examined about what he said and did to obtain the statements. The witnesses were not informants; therefore, no informant instruction was required. The trial court did not err in refusing to give the requested instruction.
Accomplice Instruction
P.I.K Crim. 3d 52.18 instructs the jury: “An accomplice witness is one who testifies that (he)(she) was involved in the commission of the crime with which the defendant is charged. You should consider with caution the testimony of an accomplice.” This instruction was not requested by defense counsel. As a result, failure to give this instruction is reversible only if clearly erroneous. See State v. Pierce, 260 Kan. 859, 868, 927 P.2d 929 (1996).
Berger was considered a suspect by law enforcement officers. This was suggested in the tape-recorded statements Berger gave to Hennessy and the fact Berger was considered by the police as an accomplice in the shooting. Berger testified at trial that prior to making her statements to Hennessy that implicated Gholston, Hennessy threatened to prosecute her for her involvement in the commission of the crime.
At trial, Hennessy confirmed that he read Berger her rights before interviewing her. He testified,
“In diese type of cases, sometimes we’re not quite sure if the person who is talking with us is going to be a suspect or a witness. In this particular case, or some cases, we’d just err on the side of caution and make sure; and since a stolen vehicle was involved and we already had information diat she had access to it, diere could have been a crime committed by her diat she was involved in. Therefore, I felt I should read her her rights.”
Hennessy testified that Berger indicated to him that if he thought she was involved in the QuikTrip murder, she wanted an attorney. After getting a little frustrated with Berger’s various versions of the incident, Hennessy told Berger, “Do you want to co operate or do you want to be charged with murder?” Berger said, “I want to cooperate; I’m scared.”
At trial, Berger testified that regarding her initial 1995 interview Hennessy stated that if she did not come in for the interview, the police were going to pick her up as a suspect in the murder. Berger voluntarily came in for the interview. Berger testified, “[Hennessy] asked me a couple questions about some gang members. He asked me about [Gholston]. He asked me my relations with Choc. He asked me my involvement with them; told me that he knew I knew.” Berger continued, “[Hennessy] handcuffed me to a table. He had me in there for about four or five hours. He arrested me and took me to YRH for felony car theft. That’s basically all he talked to me about.” Hennessy told Berger that she was looking at 20 to 25 years for accessory to murder. According to Berger, Hennessy told her that her child would be taken from her. He also told her that somebody told him that Walker (Berger’s boyfriend) was the one who committed the murder, and if she did not want Walker to go to jail, she needed to tell the truth. Berger testified that she told Hennessy that she “had no knowledge of who was shooting who or where the gunshots came from, but [she] did take the blame for the [stolen] car.”
Berger spoke with Hennessy again in April 1999. Her 1999 taped interview provided the evidence necessary to convict Gholston. Berger testified at trial that in 1999 Hennessy told her that if she cooperated, she would not be charged with accessory to murder.
In State v. DePriest, 258 Kan. 596, 907 P.2d 868 (1995), DePriest, Jesse Burton, and another were charged with first-degree murder and conspiracy to commit murder. On appeal, DePriest argued that the trial court should have given an accomplice instruction because Burton was the only witness to DePriest’s involvement in the crime. DePriest did not request such an instruction at trial.
The DePriest court noted that in determining whether prejudicial error has occurred in the failure to give an accomplice instruction, courts generally look to the extent and importance of the accomplice testimony, as well as any corroborating testimony. 258 Kan. at 605.
In this case, Berger’s testimony against Gholston and Burton’s testimony in DePriest was vitally important because in both cases the testimony linked the defendant to the crime. In DePriest, Burton’s testimony was partially corroborated by the defendant’s admissions and other evidence. 258 Kan. at 605-06. The DePriest court did not find reversible error in the failure to give an accomplice instruction, stating:
“As early as 1910, tills court stated, in a case where the defendant claimed error for failure to give an accomplice instruction even though none had been requested, that ‘[w]itliout such an instruction a juiy of ordinary intelligence would naturally receive with caution the testimony of a confessed accomplice.’ [Citation omitted.]. . . .
“. • . Because there is corroboration of the accomplice’s testimony, and because a jury of ordinary intelligence would naturally receive with caution the testimony of Burton, we conclude that there was no real possibility the jury would have reached a different result had the instruction been given.” 258 Kan. at 606.
It should be noted that although Hennessy told Berger that her actions on the night of the shooting could result in the charge of murder as an aider and abettor, there is no evidence that Berger had knowingly associated or participated in the crime. At trial, Berger testified that she asked Gholston to go into the QuikTrip to buy blunt sticks. While Gholston was out of the car, Berger heard gunshots and screamed for him to get back into the car, which he did, and they sped away. In statements to Gholston’s attorney, Berger stated that she never saw the gun in the car, she never saw Gholston get out of the car with a gun, and she never saw the gun until she saw Gholston shooting. In a taped interview with Hennessy, Berger stated that she did not know Gholston had a gun until the shooting started.
Under the circumstances, the judge was not required to give an accomplice instruction.
Prosecutor’s Statements
Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant’s constitutional right to a fair trial. Where prosecutorial statements are not objected to at trial, if the claimed error has been determined to implicate a defendant’s right to a fair trial, our standard of review is the same whether or not an objection was made at trial. If the claimed error rises to the level of a denial of the Fourteenth Amendment right to due process, the issue will be addressed. State v. Pabst, 268 Kan. 501, 504, 996 P.2d 321 (2000).
The analysis of the effect of a prosecutor’s alleged improper remarks in closing argument is a two-step process. First, we decide whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. In criminal trials, the prosecution is given wide latitude in language and manner or presentation of closing argument as long as the argument is consistent with the evidence. Second, we must decide whether the remarks constitute plain error, that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal. 268 Kan. 501, Syl. ¶ 3.
Gholston contends the prosecutor in closing argument improperly defined premeditation, appealed to community values, and vouched for State’s witnesses. The prosecutor stated:
"Deandre Parker is a gang member, okay? He’s a gang member. That is foreign to the 11 of you. You do not live in that element. You are not exposed to that element. But that is die element in this case, and we have to deal with it.
“He is a Second Streeter. That is a rival gang of the Crips. You also know one other fact, uncontested, that prior — before this shooting of Parker by Mr. Gholston on diis night, that they’d had at least two run-ins on the street. What they are, we don’t know but we know they’re enemies and they’ve met before on the streets.
“One other fact that I will come back to later, it is a very subtle fact, but you have to think about it, and I’ll explain it later on. And this is the streets talking.
“Brentashia Smith was a Crip baby. That description is demeaning to her as a human being, as an innocent child, and as a victim of a senseless homicide, but she was a Crip baby. Her father was Brent Smith. He was a Crip.
“Mr. Gholston is a Crip. He killed one of his own. He killed a Crip.”
Gholston contends that the prosecutor’s reference to gang involvement and his encouragement to have the jury “deal” with it, constitutes improper argument, encouraging the jury to consider facts other than whether the State had proved Gholston guilty of murder.
The prosecutor’s references to gang involvement were not, in this case, erroneous. The prosecutor was informing the jurors that gang membership and all of its nuances might be outside their experiences, but it was within the context of this case. Without consideration of the gang evidence and culture, this crime was inexplicable.
Gholston next contends that the following italicized statement by the prosecutor constitutes an improper expression of the prosecutor’s personal opinion regarding what evidence should be believed. The State asserts that the statement must be considered in the context of the statement immediately preceding and following it.
“This is not a clean trial. I recognize that. But you’ve got to look at the evidence. And by the way, Mr. Svoboda, the evidence is everything. You know, this is evidence. This is why you get to listen to it. You know, don’t think that evidence is just the witness stand. That’s evidence, a tape.
“And when you think about people’s testimony and then you listen to the tape, harken back to what I said, that fear is a great motivator when you sit eight feet from a murderer.
“The truth is that Detective Hennessy, who has been a cop for 20 years, was relentless. And he seeks justice. And now it’s before you, the truth and justice, and I ask you to end your silence and convict him of a first-degree murder.
“You have a verdict form. I told you I’d come back to the combination theory. If you believe he’s not guilty, you just go straight down there and check it not guilty.
“But if you believe he’s guilty, if you believe he pulled the trigger, based on the evidence and the law, then you can find him guilty of murder in the first degree. It’s a given. You may say murder in the first degree, felony murder. Instantly guilty, no question about it.
“You may think, well, first-degree premeditation, that it was intentional, that he did it with premeditation. You may check that. That’s IB.
“1C is called the combination theory. What that means, just simply put, is if the 11 of you think this man is guilty, but maybe 5 of you think, well, felony murder [is] what he did because I don’t think he intentionally killed her and the other 6 say no, it was intentionally killing, transfer of intent. Intent follows the bullet. If 11 agree he’s guilty, but you can’t decide felony — if it’s felony or premeditated but you believe he’s guilty, you just say combination. The law permits this. This isn’t the State of Kansas talking. This is the Court, Rebecca Pilshaw talking. The combination theory, okay?
“The 11 of you agree that he’s guilty but you can’t decide which issue, which specific theory it was—
“THE COURT: One minute.
“MR. KAUFFMAN: Thank you, Your Honor.
“And I appreciate your patience. Take whatever time you need, but seek the truth. The tapes tell you the truth. The truth has been in this courtroom too. Sometime[s] it’s not easy to see, and sometimes it’s very quiet, but 1 ask you when you think about it, if all of you will look slightly to your right, the truth is there’s your murderer right there. Convict him of it.” (Emphasis added.)
The trial was fraught with inconsistent witness statements, and there was no physical evidence Unking Gholston to the shooting. The defense attorney focused on the inconsistencies in an attempt to create reasonable doubt. The prosecutor admitted the weaknesses in the case and urged the jury to sort out the facts and find that Gholston committed the crime of murder. The prosecutor emphasized the fact-finding role of the jury at the beginning of his closing argument:
"You really have one decision in this case when you look at what the issue is, and this is the decision you need to decide: If you believe based on all the evidence, all the evidence and the law given to you, that Corey Gholston pulled the trigger of that gun that night, you will find him guilty then.”
We note that Gholston did not object to the prosecutor’s closing argument at trial. To support his claim of prosecutor’s misconduct, Gholston relies on Pabst, where the prosecutor accused Pabst of lying at least 11 times during closing argument, stating: “The State tells you he Med.” 268 Kan. at 505. The defense attorney objected numerous times and moved for a mistrial during the course of the argument. The trial court overruled the defense counsel’s objections.
The Pabst court concluded that whether couched in terms of the State or the prosecutor, the prosecutor’s assertion that Pabst lied was improper. It was also improper for the prosecutor to claim, “We didn’t He to you,” in an attempt to bolster the credibility of the State’s witnesses. 268 Kan. at 505. The Pabst court quoted KRPC 3.4 (2000 Kan. Ct. R. Annot. 389) which states that a lawyer shall not in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused. 268 Kan. at 506. Pabst’s conviction was reversed and remanded for a new trial because of prosecutorial misconduct during closing argument. 268 Kan. at 511.
Here, the trial court erred in allowing the prosecutor to state: “[T]he truth is there’s your murderer right there.” However, given the context of the comment, it was less egregious than the error in Pabst. Here, the conflict was in the State’s witnesses’ in-court and out-of-court statements. The State admitted its witnesses were less than credible, and it was for the jury to determine what it believed.
The jury instructions explained to the jury that (1) it was to decide the case by applying the instructions to the facts as it found them; (2) statements, arguments, and remarks of counsel were intended to help it in understanding the evidence and in applying the law, but were not evidence; (3) it was for the jury to determine the weight and credit to be given the testimony; (4) the jury must be convinced from the evidence that the defendant was guilty; and (5) the jury’s verdict must be founded entirely upon the evidence admitted and the law given in the instructions.
The jury is presumed to have followed its instructions. State v. Fulton, 269 Kan. 835, 842, 9 P.3d 18 (2000). Although the prosecutor’s remarks on credibility, i.e., it was his belief that the witnesses’ statements that implicated Gholston were truthful, was misconduct, under the circumstances the misconduct did not constitute reversible error.
Gholston also contends that the prosecutor’s statement regarding the law of premeditation was erroneous and requires reversal of his conviction. For support, Gholston relies on State v. Moncla, 262 Kan. 58, 70, 936 P.2d 727 (1997), and State v. Saleem, 267 Kan. 100, 977 P.2d 921 (1999), for support. In Moncla, this court held that a jury instruction stating that premeditation “may arise in an instant” was inappropriate because it diminished the importance of the element of premeditation. The Moncla court found although the instruction was erroneous, the evidence was that the victim had been struck in the head 18 times with a hammer after a pillow was placed over her head. The Moncla court noted there was no evidence of provocation, and the defendant left the scene telling people he was going to work; he instead hid. On these facts, this court concluded that the record contained abundant evidence of premeditation and deliberation. 262 Kan. at 73.
Here, the prosecutor stated:
“Again, do not read any more into definitions than what is given to you. To have thought the matter over beforehand, how long does it take to consider that I’m going to intentionally kill you? (Snaps finger.) It can be that quick. It’s not necessarily Hollywood, where we have the weeks of planning and you’ve all seen those type [of] movies. In the State of Kansas, the law means the law, to have thought the matter over beforehand; and if you believe Gholston pulled the trigger, you know he thought the matter over beforehand.”
The State contends that even if the prosecutor erroneously misstated the law, the jury instructions properly apprised the jury of the law.
Here, we are dealing with a prosecutor’s comment in closing argument which did not purport to be an abstract statement of the law. The facts are clear — the shooting was premeditated. There is evidence that Gholston, without provocation, got out of the van with a gun, aimed the gun at a rival gang member’s car, and fired a volley of bullets into the car killing Brentashia. Under the circumstances, the prosecutor’s statement was not reversible error.
Cumulative Errors
Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant. State v. Bedford, 269 Kan. 315, 332-33, 7 P.3d 224 (2000).
Gholston contends that cumulative trial errors require this court to reverse his conviction. We have reviewed the record and have determined that this issue has no merit.
Imposition of the Hard 40
Where the sufficiency of the evidence is challenged for establishing the existence of an aggravating circumstance in a hard 40 sentencing proceeding, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence. State v. Murillo, 269 Kan. 281, 287-88, 7 P.3d 264 (2000).
After finding as an aggravating circumstance that Gholston knowingly or purposefully created a great risk of death to more than one person when he fired a semi-automatic weapon across the QuikTrip parking lot into a parked car, the trial court imposed the hard 40 sentence.
Gholston contends to this court that because there was no evidence the shooter saw more than one person when he pulled the trigger, there is no evidence that the shooter knowingly or purposefully created a great risk of death to more than one person.
We disagree with Gholstoris statement of the facts. The evidence was that the white van in which Gholston was a passenger first pulled up into the parking lot of the QuikTrip. Seeing a crowd in the parking lot, someone in the van decided it would be better to park on a side street behind the QuikTrip. An attendant at a neighboring gas station heard the gunshots and saw 20-30 people scatter and leave the parking lot. Gholston shot in the direction of the parked car, breaking glass throughout the parking lot. Fourteen cartridge casings were found at the southwest comer of the QuikTrip. Brentashia was killed and another person was injured by the bullets. Clearly, Gholston knowingly or purposefully created a great risk of death to more than one person by firing a semiautomatic weapon into a crowded parking lot.
Gholston next argues that even if this court affirms the aggravating circumstance found by the trial court, it should reverse the hard 40 sentence because the mitigating circumstances outweigh the aggravating circumstances.
Where a trial court’s refusal to find a mitigating circumstance under K.S.A. 21-4637 is challenged by the defendant, the standard of review is whether, after a review of all the evidence, viewed in a light most favorable to the defendant, a rational factfinder could have found by a preponderance of the evidence the existence of the mitigating circumstance. However, the trial court’s decision regarding a circumstance not enumerated as mitigating in the statute is within the trial court’s sound discretion and will not be disturbed on appeal absent abuse of discretion. State v. Spain, 263 Kan. 708, 720, 953 P.2d 1004 (1998).
K.S.A. 21-4637(c) provides that a court may find that the fact that the victim was a participant in the defendant’s conduct is a mitigating factor weighing against the imposition of the hard 40 sentence. Gholston asserts that the intended victim of the shooting, opposing gang member Parker, was a participant in gang violence; therefore, that fact should weigh as a mitigating factor. Gholston’s argument assumes that since he was convicted on a transferred intent theory, the intent should transfer back to the intended victim when determining mitigating circumstances.
Gholston theorizes that if Parker had been killed in a gang-related shooting, he would have been a participant in the facts leading to the shooting and his participation in gang activities would constitute a mitigating circumstance. Gholston’s argument reveals the inherent fallacy in his argument: Neither Parker nor Brentashia was injured while engaged in a gang activity. Parker’s prior activities would not be a mitigating factor in a shooting because Parker was not engaged in gang activity when shot. Revenge is not a mitigating factor.
Gholston also argued to the trial court that his age, 17 years at the time of the crime, was a mitigating factor that outweighed the aggravating circumstance of risk of death to more than one person. Gholston cites State v. de la Garza, 138 Ariz. App. 408, 409, 675 P.2d 295 (1983), disapproved on other grounds State v. Thurlow, 148 Ariz. 16, 712 P.2d 929 (1986), where the Arizona court found that youth or old age only becomes a mitigating circumstance when, because of immaturity or senility, the defendant lacks substantial judgment in committing the crime.
Although age at the time of the offense is a statutory mitigating circumstance, K.S.A. 21-4637(g), age alone does not prevent the imposition of a hard 40 sentence. See State v. Said, 269 Kan. 657, 7 P.3d 1214 (2000) (defendant, age 16, sentenced to the hard 40 where the single aggravating circumstance was that defendant knowingly and purposefully created a risk of death to more than one person.)
The trial court found that the aggravating circumstance of creating a risk of death to more than one person outweighed Gholston’s young age. The judge noted that Gholston had killed a baby, and although she was tired of sending young men to prison for 40 years, she was also tired of senseless violence.
At age 17, Gholston was capable of judging the risks inherent in shooting a semiautomatic weapon into a crowded parking lot. The judge did not abuse her discretion.
Hard 40 Sentence Violates the Constitution
Gholston also asserts that the hard 40 sentencing provisions violate the Sixth and Fourteenth Amendments to the United States Constitution. We disagree and point out that this court has previously determined that the hard 40 sentencing provisions do not violate the Sixth and Fourteenth Amendments to the United States Constitutions. See State v. Conley, 270 Kan. 18, Syl. ¶ 3, 11 P.3d 1147 (2000), where the court stated:
“Imposition of the K.S.A. 21-4638 hard 40 sentence based on a fact not found by the jury does not increase a defendant’s maximum sentence of imprisonment for life imposed under K.S.A. 21-4706(c). The hard 40 sentence limits the lower end of die sentence. Defendant’s hard 40 sentence violates neither the Due Process Clause of the United States Constitution nor [the] right to trial by jury under the Sixth Amendment to die United States Constitudon or § 5 of the Kansas Constitution Bill of Rights.”
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|
The opinion of the court was delivered by
Allegrucci, J.:
Larry L. Rebarchek filed suit against his former employer, Farmers Cooperative Elevator and Mercantile Association (Farmers), and supervisor, Floyd G. Barber, alleging retaliatory discharge for the filing of a workers compensation claim. The district court granted summary judgment in favor of Farmers and Barber, and Rebarchek appealed. The Court of Appeals reversed and remanded for trial. Rebarchek v. Farmers Co-op Elevator & Mercantile Ass’n., 28 Kan. App. 2d 104, 13 P.3d 17 (2000). This court granted defendants/appellees’ petition for review.
Farmers operates five elevator and grain storage and handling facilities. Rebarchek began his employment with Farmers in Sep tember 1979. In 1983, he fell approximately 60 feet and was seriously injured when the rigging broke as he cleaned the inside of one of Farmers’ bins. Rebarchek became branch manager of the Shields, Kansas, facility in July 1986. The Shields facility had six silos with a 665,000 bushel capacity. Rebarchek super-vised one employee, Robert Mudd. Rebarchek was responsible for receiving grain at harvest time, maintaining the quality of stored grain, and loading out the grain when it was sold.
Early in 1994, Rebarchek began experiencing recurring back problems for which he sought medical treatment. He was seen on January 18, 1994, by a physician in Dighton, Kansas. In the spring and summer of 1994, he was treated by an orthopedic specialist in Wichita. He was absent from work for an extended period in September 1994. On September 27, 1994, he gave an oral report to Farmers that he had injured his back on January 17, 1994. On November 11,1994, he gave his employer written notice of a workers compensation claim based on the January 17,1994, back injury. Reports of the Dighton and Wichita doctors were filed on November 9 and 15, 1994.
On November 16,1994, Rebarchek told'Farmers’ secretary that he reinjured his back, Barber was advised on November 17,1994, and the Form A Employers’ Accident Report was made by Farmers the following day. Rebarchek lost no time from work as a result of the November 16 reinjury.
Rebarchek and other Farmers employees drove company pickup trucks to and from work. At the end of the workday on Thursday, November 17, 1994, Barber told Mudd to drive Rebarchek home. He told Rebarchek he could no longer drive the manual transmission company pickup truck assigned for his use. Barber said that he did not want Rebarchek to reinjure his back using the manual transmission. On Friday morning, November 18, Barber announced to all employees that company vehicles could no longer be used for personal business or for commuting to work.
On Monday, November 21, 1994, Barber sent Rebarchek to work at the Alamota facility. The same day he received a letter faxed from Rebarchek’s attorney alleging that the reassignment was retaliatory. After receiving the íetter, Barber was quite angry. Bar ber believed that it was on the day he received the faxed letter that he impulsively followed Rebarchek home. Barber was upset and angry. Rebarchek testified that “at his home, Barber told him he was "tired of getting nasty letters’ from Rebarchek’s attorney and accused him of shipping out ‘bad grain.’ ” 28 Kan. App. 2d at 107.
Barber returned Rebarchek to his position at the Shields facility on Tuesday, November 22, 1994. Rebarchek remained at Shields until his termination.
On December 5, 1994, Rebarchek requested a hearing on his workers compensation claim.
Rebarchek’s failing to maintain the quality of stored grain was the reason given by Farmers for terminating him. The tasks involved in maintaining the quality of the stored grain included checking the temperature of the grain, then turning and blending it if hot spots began to develop. Grain that develops hot spots can become sour, musty, and burned, thus losing value.
Temperatures of stored grain are checked and recorded. The system for tracking temperatures consists of thermocouples on cables suspended inside each bin. In order to check temperatures, a worker switches on the system and a digital display, then clicks a dial in order to serially display the readings from the fhermocouplers. Each reading is written in a “hot spot book.” The temperature check at the Shields facility usually took 30 to 35 minutes to complete.
Until grain temperatures are lowered and stabilized after harvests, temperature checks are conducted approximately three times a week. Once the grain temperatures are in acceptable ranges, checks are made at least once a week.
Rebarchek had delegated responsibility for reading the grain temperatures to Mudd. Rebarchek, however, retained ultimate responsibility for the condition of the grain.
On or about September 25, 1994, Farmers first learned of potential problems with the condition of the grain at the Shields facility. Rebarchek was advised by a customer that the grain was bad. Rebarchek assured Barber that “they had simply run through a pocket of bad wheat.” Wheat samples furnished to Barber by Rebarchek were tested and given acceptable grades.
In spite of being alerted in late September 1994 to potential problems with the condition of stored grain in the Shields facility, Rebarchek did not monitor it. In February 1995, he discovered that a bin that was supposed to be empiy was filled with grain. When Rebarchek investigated, he found that grain temperatures had not been checked and that grain had not been properly moved or turned. He discovered com with a temperature of 144. The preferred temperature range for stored com is 40 to 60.
On March 21,1995, Rebarchek and Mudd received written reprimands. Rebarchek was reprimanded “for his lack of management of the grain at the Shields elevator.” The reprimand stated:
“Because of inadequate care in reading the hot spot detecting system and turning the grain and blending the grain as needed to maintain it in a marketable condition, we have suffered losses in both wheat and com. There has been a signifigant [sic] loss in the wheat and now we will have even a bigger loss in com as there are 125,000 bus. out of condition.”
Handwritten on the lower half of the page is the following: “Larry claims only 80,000 bu com out of condition.” The monetary loss was not determined until the grain was shipped, inspected and tested, the purchaser’s vouchers were received by Farmers, and the grain certificates were returned. Farmers first shipment of “hot com” was made in April 1995, and its estimate of die total monetary loss was based on the figures from that partial shipment (30,000 of 140,000 bushels). Farmers estimated that its loss would total approximately $80,000.
On March 24, 1995, Rebarchek underwent back surgery. He returned to work on April 17, 1995. His doctor imposed the following restrictions: “He is released for light duty with no lifting more than 40 lbs., no bending or twisting of the back more than halfway, no climbing ladders. He may sit, stand or walk for 2 hours at a time with breaks. Hopefully, these will be temporary restrictions.” Rebarchek’s activities had not been restricted before the surgery.
One week after Rebarchek returned to work, his employment was terminated by Farmers. Mudd also was discharged on April 24, 1995.
The Court of Appeals found that there was a genuine issue of material fact that precluded the entry of summary judgment against Rebarchek and remanded the case for trial.
In arguing that the Court of Appeals incorrectly concluded that Rebarchek was entitled to test his case before a jury, defendants raise questions about the burden of proof and using a burden-shifting approach as well as whether Rebarchek’s evidence raised a genuine issue of material fact.
Burden of proof. The burden of proof borne by a plaintiff alleging retaliatory discharge due to his or her filing a workers compensation claim was the subject of a certified question in Ortega v. IBP, Inc., 255 Kan. 513, 874 P.2d 1188 (1994). This court said:
“In Kansas, claimants are required to prove a claim for retaliatoiy discharge by clear and convincing evidence. Clear and convincing evidence is not a quantum of proof but rather a quality of proof. A party having the burden of proving a retaliatoiy discharge from employment for having filed a workers compensation claim must establish that claim by a preponderance of the evidence, but the evidence must be clear and convincing in nature. It is clear if it is certain, unambiguous, and plain to die understanding. It is convincing if it is reasonable and persuasive enough to cause the trier of facts to believe it.” 255 Kan. 513, Syl. ¶ 2.
Defendants complain that the Court of Appeals misidentified the burden of proof in Syl. ¶ 4 in saying that “[t]he burden of proof is on the complainant to prove by a preponderance of the evidence . . . Defendants failed to note Syl. ¶ 2, which states: “The plaintiff must prove a claim for retaliatory discharge by a preponderance of the evidence, but the evidence must be clear and convincing in nature.” 28 Kan. App. 2d 104, Syl. ¶, 2.
A question that presents itself in this case is whether a clear and convincing quality of proof standard should be required in determining on a motion for summary judgment whether there is a genuine issue of material fact. In Baumann v. Excel Industries, Inc., 17 Kan. App. 2d 807, 845 P.2d 65, rev. denied 252 Kan. 1091 (1993), a panel of the Court of Appeals, including now-justice Davis, gave thoughtful consideration to this question and concluded that the clear and convincing evidence standard need not be met at a summary judgment stage of the proceedings:
“We conclude the application of a clear and convincing evidence standard at the summary judgment stage is unique to libel cases because First Amendment rights are at issue. In Ruebke, 241 Kan. at 602, the court stated:
‘To provide added protection to the press from libel suits, the United States Supreme Court recently changed the direction of summary judgment under the federal rules. In a libel action brought by a “public figure,” that individual is required under the First Amendment to prove by clear and convincing evidence that the defendant acted with “actual malice, a knowing or reckless disregard of die trudi.” That the clear and convincing standard of proof of malice applies at die summary judgment stage was decided in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court stated:
“[Tjhe inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof tiiat would apply at the trial on the merits. . . . [Wjhere die First Amendment mandates a ‘clear and convincing’ standard, the trial judge in disposing of a directed verdict motion should consider whether a reasonable factfinder could conclude, for example, that die plaintiff had shown actual malice with convincing clarity.” 477 U.S. at 252.’
“Federal court decisions interpreting the federal code of civil procedure are highly persuasive in applying the Kansas Code of Civil Procedure, which is based on the federal code. See Stock v. Nordhus, 216 Kan. 779, 782, 533 P.2d 1324 (1975). However, in die context of fraud, the Kansas Supreme Court has stated that, although a party alleging fraud must prove it by clear and convincing evidence, ‘a party resisting a motion for summary judgment need not present this quantum of evidence in order to succeed in opposing the motion.’ Gorham State Bank v. Sellens, 244 Kan. 688, 691, 772 P.2d 793 (1989). The Supreme Court has subsequently opined that clear and convincing evidence is a quality and not a quantum of proof. Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 448, 827 P.2d 24 (1992).
“We conclude die district court erred in requiring Baumann to meet the clear and convincing evidence standard at diat stage of the proceedings.” 17 Kan. App. 2d at 815-16.
We find the reasoning of Gorham and Baumann to be sound and conclude Rebarchek need not meet the clear and convincing standard at the summary judgment stage of the proceedings.
Burden-shifting approach. In.Ortega, the court also discussed the burden-shifting approach to proof of employment cases:
“Kansas has adopted the McDonnell Douglas burden-shifting analysis for employment discrimination actions. Woods v. Midwest Conveyor Co., 231 Kan. 763, 648 P.2d 234 (1982). The burden ‘is on the complainant to prove by a preponderance of the evidence that the respondent is guilty of a discriminatory practice. Initially, the complainant must present a prima facie case of discrimination. Then the burden of going forward with tire evidence shifts to respondent and this burden may be discharged by evidence of a legitimate, nondiscriminatoiy reason for respondent’s conduct. Once die respondent discharges diis obligation, die complainant must continue with the burden of proving by a preponderance of the evidence that the reasons offered by respondent were merely a pretext for discrimination.’ 231 Kan. 763, Syl. ¶ 2.
See Beech Aircraft Corp. v. Kansas Human Rights Comm’n, 254 Kan. 270, 864 P.2d 1148 (1993). To establish a prima facie case of discrimination, the plaintiff must show that he or she is a member of a racial minority, that the employer was seeking applicants for a position for which he or she applied and was qualified, that he or she was rejected for the position despite his or her qualifications, and that after rejecting die plaintiff die employer continued to seek applicants with his or her qualifications. McDonnell Douglas, 411 U.S. at 802.
“A somewhat modified burden-shifting analysis is also applied in cases where a public employee is terminated after having exercised his or her right to free speech protected by the First Amendment. Larson v. Ruskowitz, 252 Kan. 963, 850 P.2d 253 (1993). In such cases, the public employee must first make a prima facie showing diat his or her protected communication was a motivating factor for die termination (or suspension from employment), and upon such a showing die burden shifts to the governmental employer to produce evidence it would have terminated or suspended the employee even without the communication. 252 Kan. 963, Syl. ¶ 4. The Larson court distinguished cases involving violation of a public employee’s free speech rights from whistle-blowing retaliatory discharge cases, noting diat whisde-blowing and workers compensation retaliatory discharge actions protect employees in both the public and private sectors, while violation of free speech actions only are available to public employees.” 255 Kan. at 526-27.
Based on this court’s use of the burden-shifting analysis for discrimination and free speech cases, “Judge Earl E. O’Connor of the United States District Court for the District of Kansas has concluded that Kansas would utilize the burden-shifting analysis in workers compensation discharge cases. Robinson v. Wilson Concrete Co., 913 F. Supp. 1476, 1483 (D. Kan. 1996).” 28 Kan. App. 2d at 109-10. The Court of Appeals stated that the parties agreed that the analysis was appropriate and held that it applied. 28 Kan. App. 2d at 110. We agree.
The Court of Appeals adopted the elements of a prima facie claim for retaliatory discharge for filing a workers compensation claim as set out in SanJuan v. IBP, Inc., 160 F.3d 1291, 1298 (10th Cir. 1998). 28 Kan. App. 2d at 109. Those elements are: (1) The plaintiff filed a claim for workers compensation benefits or sustained an injury for which he or she might assert a future claim for such benefits; (2) the employer had knowledge of the plaintiff s workers compensation claim injury; (3) the employer terminated the plaintiff s employment; and (4) a causal connection existed between the protected activity or injury and the termination. Petitioners do not directly question the statement of the elements made by the Court of Appeals. They argue, however, that Rebarchek needs to show that his job performance was satisfactory in order to make out a prima facie case. That argument will be addressed later in this opinion.
The differences between the district court’s view of summary judgment and that of the Court of Appeals begins with the fourth element of the prima facie case. There is no dispute that Rebarchek presented sufficient evidence on the first three elements of a prima facie case. On the fourth element, the district court found that Rebarchek failed to come forward with sufficient evidence of a causal connection between his workers compensation claim and his discharge.
Summary judgment. The settled principles regarding summary judgment are as follows:
“Summary judgment is appropriate when the pleading, depositions, answers to interrogatories, and admissions on file, togetherwith the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
On the fourth element of Rebarchek’s prima facie case, that a causal connection existed between the protected activity or injury and the termination, the district court first found “no correlation between the time of filing of the original compensation claim and the discharge seven months later.” Proximity in time between the claim and discharge is a typical beginning point for proof of a causal connection. Marinhagen v. Boster, Inc., 17 Kan. App. 2d 532, 540, 840 P.2d 534 (1992). Showing proximity in time, however, is not the sole means of showing a causal connection. The Tenth Circuit has held that unless the employer’s adverse action is closely connected in time to the protected conduct, the claimant will need to produce additional evidence in order to show a causal connection. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999). Citing Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir. 1996), cert. denied 518 U. S. 1019, the Court of Appeals observed that a plaintiff in Rebarchek’s position “can avoid summary judgment by showing a pattern of retaliatory conduct stretching from the fifing of a workers compensation claim to termination.” 28 Kan. App. 2d at 111.
The Court of Appeals viewed Rebarchek’s evidence of a pattern of retaliatory conduct sufficient to raise a genuine issue of material fact regarding a causal connection. The phrase used by the Court of Appeals in describing plaintiff s proof was that he had “assembled enough bits and pieces of circumstantial evidence.” 28 Kan. App. 2d at 111. The Court of Appeals fisted the bits of evidence mustered by plaintiff:
1. Barber was angry;
2. Barber followed Rebarchek home after the workers compensation claim was filed;
3. Barber reassigned Rebarchek to the Alamota facility;
4. Barber prevented Rebarchek from driving the company vehicle previously assigned to him;
5. Barber was angry that Rebarchek refused cash offered in lieu of pursuing workers compensation claim;
6. employees with similar or worse job performances were not terminated; and
7. Rebarchek was fired within a week of his post-surgery release to return to work that included restrictions on his activities.
In their petition for review, defendants assert that items 1 through 5 related to Rebarchek’s mishandling of stored wheat and all occurred within the space of 2 days, November 16 and 17,1994. The record does not bear out their assertion. The record shows that near the end of September 1994 a customer reported purchasing bad wheat from the Shields facility, Rebarchek told Barber the bad wheat was from an anomalous pocket, and tested wheat samples were acceptable. Occurrences of November 16 and 17 are not linked in the record with bad wheat.
With regard to the plaintiff s 1994 injury and claim, the record shows that on November 11 Rebarchek gave Farmers written notice of a workers compensation claim based on his January 17 back injury, his doctors’ reports were filed on November 9 and 15, Rebarchek told Farmers’ secretary on November 16 that he reinjured his back, Barber was advised on November 17 and the Form A Employers’ Accident Report was made by Farmers on November 18.
With regard to the employer’s actions, the record shows that Barber’s anger coincided with Rebarchek’s reinjury and the filing of his workers compensation claim. At that time, Barber cancelled Rebarchek’s company vehicle privileges, transferred Rebarchek from his supervisory position at the Shields facility to another facility, angrily followed him home from work, and expressed anger to another worker that Rebarchek refused to take cash instead of filing for workers compensation benefits.
Four months later, on March 24, 1995, Rebarchek underwent back surgery. On April 17, he was released to return to work with restrictions on his activities. On April 24, he was terminated.
The Court of Appeals viewed this evidence as constituting a pattern of retaliatory conduct that began mid-November 1994 with Rebarchek’s reinjury and the filing of his workers compensation claim and culminated on April 24, 1995, in actual discharge. The passage of slightly more than 5 uneventful months before Rebarchek was discharged probably approaches the limit that would be recognized as part of a pattern for the purpose of establishing a causal connection between the protected activity and termination.
In this case, Farmers’ stated reason for firing Rebarchek arose during the months between Barber’s initial angry actions and Rebarchek’s termination. In February 1995, the hot corn was found. On March 21, 1995, Rebarchek and Mudd received written reprimands for failing to maintain the condition of stored grain.
Defendants argue that plaintiffs poor job performance precludes him from establishing the fourth element of a prima facie case of retaliatory discharge. They cite several Court of Appeals cases in which a treatise was quoted on the use of circumstantial evidence for proving retaliation. In Marinhagen, 17 Kan. App. 2d at 40, the Court of Appeals stated:
“Plaintiffs’ case perhaps rests to a great degree upon circumstantial evidence as do most discrimination and retaliation cases. 2A Larson’s Workmen’s Compensation Law § 68.36(c) (1992) suggests:
‘Ordinarily the prima facie case must, in the nature of things, be shown by circumstantial evidence, since the employer is not apt to announce retaliation as his motive. Proximity in time between the claim and the firing is a typical beginning-point, coupled with evidence of satisfactory work performance and supervisory evaluations.’ ”
The prima facie case, as that phrase is used in the quote from the treatise, is not a prima facie case as set out in our burden-shifting analysis. With the burden-shifting approach utilized by the Court of Appeals, evidence of the claimant’s job performance, negative and positive, is not a part of his or her prima facie case but rather is the subject of the employer’s proof and the plaintiff s response. A claimant’s "prima facie case is not an onerous burden under the McDonnell Douglas burden-shifting scheme.” Robinson v. Wilson Concrete Co., 913 F. Supp. 1476, 1483 (D. Kan. 1996).
In the present case, the legitimate, nonretaliatory reason given by defendants for firing Rebarchek was that he failed to maintain the condition of stored grain, causing Farmers to lose money on the sale of a substantial quantity of out-of-condition grain.
With the burden shifted back to him, Rebarchek presented evidence tending to support the proposition that defendants’ stated reason for discharging him on April 24,1995, was merely a pretext. Plaintiff points to evidence that defendants knew how much grain was out-of-condition at the time, March 21, 1995, when he and Mudd were reprimanded in writing. The defendants would explain not firing Rebarchek in March before his back surgery by stating that they did not know the amount of the financial loss until late April, when Rebarchek was discharged. Rebarchek’s position is that Farmers may not have known the exact dollar loss at the time of the written reprimand, but it did know at that time the quantity of spoiled grain so that an estimate of the financial loss could be made. Rebarchek also points out that only an approximate dollar loss was known at the time he was fired. Barber’s affidavit states that shipments of the spoiled grain were by contract not to be completed until July 15, 1995, and the actual dollar value of the loss was not available until “after the grain was shipped, inspected and tested, the [buyer’s] vouchers received, and the Grain Certificates returned.” The grain was purchased by an ethanol-producing firm.
Rebarchek presented evidence that other Farmers employees with somewhat similar performance deficiencies were not terminated. There is evidence that another branch manager, Rick Tor-son, was given a written reprimand for failing to follow bin entry procedures. As a result of that failure, an employee was killed. On two other occasions, Torson allowed wheat and milo to be mixed together at the Alamota facility. Those two grains cannot be salvaged by separating. One of those incidents involved between 75,000 and 100,000 bushels of grain. Torson was not fired for these failures. In late November 1994, the elevator supervisor, Henry Coleman, was directed to keep watch on the Shields facility, including the grain temperatures there. Coleman did not do so but was not fired for that failure.
The Court of Appeals concluded that the evidence presented by Rebarchek for the purpose of showing that Farmers’ stated reason for his termination was unworthy of belief as the actual reason for why he was discharged raised genuine issues of material fact on the existence of pretext. 28 Kan. App. 2d at 112. Although, Rebarchek’s admittedly poor job performance supports Farmers’ position, we agree with the Court of Appeals that he is entitled to test his case before a jury by virtue of his coming forward with evidence that raises genuine issues concerning defendants’ motivation.
The Court of Appeals concluded that events predating the limitations period can provide a basis for recovery on a theory of a continuing pattern of discrimination. Rebarchek filed this action on April 22, 1997. Given the 2-year statute of limitations, the district court concluded that “[c]auses of action upon any claimed act occurring prior to April 19,1995 are barred, and may not be maintained.” The district court stated that all allegations of conduct occurring before the limitation period “should be stricken and dismissed.”
The Court of Appeals reversed the trial court’s ruling on this issue. The Court of Appeals’ comments are concise and correct:
“Our Supreme Court has recognized that, in the context of discriminatory acts covered by the Kansas Acts Against Discrimination, K.S.A. 44-1001 et seq., events predating the period of limitations may provide a basis for recovery because they were part of a continuing pattern of discrimination. Evidence of such events also may be admissible to prove that the ultimate termination sued upon was motivated by unlawful discrimination. See Woods, 231 Kan. at 765.
“The same analysis applies with equal force to a common-law action for retaliatory discharge for filing a workers compensation claim. Rebarchek has come forward with adequate evidence to proceed to trial on the theory that defendants’ actions constituted a continuing pattern of discrimination, and the jury may further consider the evidence of events predating the limitations period for whatever weight it elects to afford it on the issue of discriminatory intent.” 28 Kan. App. 2d at 112-13.
Defendants contend that evidence of defendants’ pre-April 22, 1995, conduct should not even be admissible and certainly should not be a basis for recovery of damages. Defendants’ argument is without merit.
The district court concluded that Supervisor Barber could not be held personally liable for Rebarchek’s termination because there was no employment relationship between Barber and Rebarchek. The Court of Appeals concluded that a supervisor who has sole discretion to fire an employee on behalf of the employer can be held directly fiable for retaliatory discharge so that his liability will be joint and several with that of the employer. 28 Kan. App. 2d at 117. The issue had not previously been adjudicated by Kansas courts. Upon review of Kansas case law, the Court of Appeals concluded that supervisor liability would be consistent with the principles announced in earlier cases. 28 Kan. App. 2d at 113-17.
Defendants contend that the Court of Appeals’ decision is opposite the majority and better-reasoned rule. They cite 82 Am. Jur. 2d, Wrongful Discharge, § 231, and a number of cases from other jurisdictions.
The encyclopedia reference does not support defendant’s position that individual liability is the minority rule. The article states that there is a difference of authority on the question of individual liability for acts undertaken within the scope of employment. A federal case applying Michigan law is cited for no liability; a federal case applying New Jersey law and a West Virginia case are cited for liability. 82 Am Jur. 2d § 231, p. 942.
The cases from other states and federal courts cited by defendants are similarly inconclusive. The great majority of those cases involve statutory causes of action for employment discrimination or wrongful termination. Individual liability in those cases is a matter of construction of the statutory language. Because the Kansas cause of action for retaliatory discharge for filing a workers compensation claim is not statutorily created, other courts’ interpretations of statutes offer little or no guidance.
Several of the cases cited by defendants have common-law causes of action for wrongful discharge pled along with statutory ones for wrongful discharge. For instance, in Reno v. Baird, 18 Cal. 4th 640, 76 Cal. Rptr. 2d 499, 957 P.2d 1333 (1998), plaintiff alleged termination in violation of statutory prohibitions as well as a cause of action for discharge in violation of public policy. The court concluded that there was no individual liability under the statute. Turning to the common-law cause of action, the court concluded: “It would be absurd to forbid a plaintiff to sue a supervisor under the FEHA, then allow essentially the same action under a different rubric.” 18 Cal. 4th at 664.
In reaching its decision that a supervisor is potentially hable jointly and severally with the employer for a workers compensation retaliatory discharge, the Court of Appeals began its analysis with Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981). Murphy sued not only his employer but also three individ ual supervisors, alleging willful and wanton misconduct. The panel, which included Justice Herd, recognized as a matter of public policy that the discharge of an employee in retaliation for filing a workers compensation claim is actionable at law. 6 Kan. App. 2d 488, Syl. ¶ 7. The potential liability of the supervisors was not discussed, but the Murphy panel held that plaintiff could maintain his action. As noted by the Court of Appeals in the present case, Murphy has been read, in dicta, by a federal court as requiring willful and wanton conduct for individual liability. 28 Kan. App. 2d at 116-17 (citing Edwards v. Western Mfg., Div. of Mont. Elev., 641 F. Supp. 616, 617 [D. Kan. 1986]). That reading was rejected by the Court of Appeals in the present case: “We read Murphy’s mention of its three supervisors’ lack of authority for their actions merely as a function of the public employment context and the necessity of addressing the possibility of a governmental immunity defense. See 6 Kan. App. 2d at 494-95.” 28 Kan. App. 2d at 116.
Although individual liability was not an adjudicated issue in Murphy, Marinhagen, or Riddle v. Wal-Mart Stores, Inc., 27 Kan. App. 2d 79, 998 P.2d 114 (2000), the Court of Appeals viewed those cases as indicating no prohibition on individual employee liability. On the other side of the scale in the Court of Appeals’ analysis was Barber’s asserted lack of an employment relationship between himself and Rebarchek. 28 Kan. App. 2d at 115. On this point, the Court of Appeals stated: “Although it is always true that an entity employer and its discharged employee must have been parties to the former employment relationship, it is not necessarily true that the supervisor who actually discharged the employee was also a party to that relationship.” 28 Kan. App. 2d 115.
The Court of Appeals’ resolution of the issue was to approve individual liability, as indicated by prior cases, but to limit potential liability in accordance with the status of the supervisor in relation to the discharged employee. In this regard, the Court of Appeals determined that the potential for individual supervisor liability “should turn on whether the supervisor was free to exercise his or her sole discretion to arrive at die termination decision.” 28 Kan. App. 2d at 115.
The opposite view is expressed in Buckner v. Atlantic Plant Maint., 182 Ill. 2d 12, 694 N.E.2d 565 (1998), where the Illinois Supreme Court stated:
“Logically speaking, only ‘the employer’ has the power to hire or fire an employee. Obviously, an agent or employee of the employer may carry out that function on the employer’s behalf, but it is still the authority of the employer which is being exercised. If the discharge violated public policy, it is the employer who is rightly held liable for damages. The purpose underlying the recognition of retaliatory discharge actions is therefore fully served by allowing actions only against the employer.
“The plaintiff contends, however, that the ‘deterrent effect’ of the tort will be diminished if the employee or agent who ‘participated’ in the firing is not also subject to liability. Imposing liability for retaliatory discharge on parties other than the employer is not necessary. The power to discharge rests with the employer. Subjecting the employer to liability for retaliatory discharge therefore acts to deter discharges which violate public policy. The plaintiff suggests that allowing other parties to be held liable is necessary because it may be those other parties who ‘devise the plan’ to discharge the plaintiff for an unlawful reason. Even in die plaintiffs scenario, however, the discharge is still authorized hy the employer. Moreover, from a practical perspective, if an agent or employee induces the employer to discharge another employee for an unlawful reason, and the employer is held liable for retaliatory discharge as a result, it is likely that the employer itself will act to ‘deter’ that agent or employee from repeating such conduct.
“Limiting the potential defendants in a retaliatory discharge action to employers is particularly appropriate in a case such as this where the alleged unlawful reason for the termination was the plaintiff s pursuit of workers’ compensation benefits. Under the Workers’ Compensation Act, workers’ compensation benefits are paid to an injured employee by the employer. See 820 ILCS 305/11 (West 1996). Presumably, the intent of an employer who adopts a policy of firing employees for seeking workers’ compensation benefits is to avoid having to pay such benefits to employees. Accordingly, it is only the employer who has a ‘motive’ to fire an employee for seeking workers’ compensation benefits. The retaliatory discharge claim is therefore properly brought against the employer.
“[T]he power to hire and fire employees is ultimately possessed only by the employer. Consequently, the tort of retaliatory discharge may be committed only by die employer.” 182 Ill. 2d at 21-22.
We find the above rationale very persuasive and decline to impose liability for retaliatory discharge of an employee on a supervisor. We conclude that only the employer is liable for retaliatory discharge.
Finally, defendants question Rebarchek’s maintaining suits in both state and federal courts, alleging that he was discharged in retaliation for fifing a workers compensation claim. Defendants argue that if the “elements and standards” of the Kansas Act Against Discrimination (KAAD), K.S.A. 44-1001 et seq., are to be applied in a retaliatory discharge action, a claimant should have to elect to file either a KAAD or a retaliatory discharge claim. They assert that one would duplicate the other.
Rebarchek filed both state and federal actions. In the federal court action, he alleged violations of the Americans with Disabilities Act (ADA) and the KAAD. Farmers sought and was granted summary judgment by the district court on the principal ground that Rebarchek’s back injury was not a disability within the meaning of the ADA. Rebarchek v. Farmers Co-op Elevator and Mercant., 60 F. Supp. 2d 1145 (D. Kan. 1999), aff'd 202 F.3d 282 (10th Cir. 2000). With regard to Rebarchek’s KAAD claim, the federal district court stated: “[T]he basis of this claim is the same as the ADA claim and the relevant KAAD provisions are virtually identical to the ADA, [thus] summary judgment is likewise appropriate on plaintiffs KAAD claim.” 60 F. Supp. 2d at 1153.
The present action does not center on the question of whether Rebarchek’s back injury is a disability. The central question in this case is whether Rebarchek was fired from his job on account of his workers compensation injury and claim. There is no merit to the defendants’ argument.
We conclude that the Court of Appeals erred in reversing the district court’s decision that a supervisor is not hable for the retaliatory discharge of an employee. In all other respects, the Court of Appeals’ decision is affirmed.
The judgment of the Court of Appeals is affirmed in part and reversed in part. The judgment of the district court is affirmed in part and reversed in part, and the case is remanded to the district court for trial. | [
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|
The opinion of the court was delivered by
Larson, J.:
Mistella Kneil appealed the upward durational departure sentence imposed following her plea of guilty to felony theft. The Court of Appeals affirmed in an unpublished opinion. Kneil argued for the first time on a petition for review that her upward departure sentence should be vacated and remanded for resentencing pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). We granted review of the single issue of whether Knells sentence may stand following our recent holding in Gould. For the reasons hereinafter set forth, we vacate Kneil’s sentence and remand the matter for resentencing.
Kneil pled guilty to one count of felony theft pursuant to K.S.A. 21-3701(a)(l) and (b)(2). The severity level of the crime, combined with Kneil’s criminal history score, called for presumptive probation with an underlying sentence of 6 to 8 months. The State agreed to recommend probation, a 6-month underlying sentence, and no restitution.
Prior to sentencing, the trial court gave notice of its intent to impose on its own motion an upward durational departure. The notice listed Kneil’s three bond forfeitures, two of which were due to her failure to report and one due to her arrest on charges of shoplifting and criminal trespass. The court also listed as a factor four other charges filed against Kneil in municipal court, including theft and obstruction of legal process, for which arrest warrants were pending because she had failed to appear.
At the sentencing hearing, Kneil argued that in one instance she failed to appear because she was not provided a sign language interpreter at a prior hearing and could not hear the announcement of her court date. Kneil also claimed the trial court was prohibited from relying on uncharged conduct, such as her arrest for shoplifting, as a departure factor. Finally, Kneil argued that “a six to eight month hammer over [her] head is adequate,” in essence contending that a presumptive underlying term would be sufficient to ensure her good behavior while on probation.
The trial court rejected Kneil’s arguments, reasoning that defendant’s hearing loss was not an adequate excuse. It noted that she had failed to appear on three occasions and had similar crimes pending against her in municipal court. While the court believed that the defendant should have an opportunity for community-based supervision, it felt the guidelines sentence did not make that meaningful and enforceable, and it wanted her to know she faced a meaningful prison term if she violated her probation.
The trial court imposed an underlying upward durational departure sentence of 14 months with 24 months’ postrelease supervision and placed Kneil on probation for 24 months. Kneil appealed the sentence.
On November 3, 1999, the trial court found Kneil had violated her probation and imposed the underlying upward departure sentence. She appealed her sentence and the revocation of her probation. The cases were consolidated for purposes of appeal. The Court of Appeals upheld both the sentence and the probation revocation in an unpublished opinion. Kneil petitioned this court for review.
We granted KneiFs petition limited to the issue of her underlying durational departure sentence. We ordered the parties to show cause why Gould is not controlling on the issue of whether Kneil’s underlying upward durational departure sentence is unconstitutional and should be vacated.
Kneil argues that her underlying upward departure sentence must be vacated because this court in Gould held that the Kansas scheme for imposing upward departure sentences is unconstitutional on its face and any sentence imposed thereunder is void. The State counters that Gould does not apply to void KneiFs sentence because she pled guilty to her crimes and waived the constitutional protections at issue in Apprendi and Gould.
Apprendi
Apprendi pled guilty to three crimes involving possession of illegal weapons. The State reserved the right to request an enhanced sentence on one of the counts based on a New Jersey hate crime statute which allowed the court to impose an enhanced sentence if it found, by a preponderance of the evidence, that in committing the crime the defendant acted with a purpose to intimidate on the basis of race or other factors. The court concluded that Apprendi unlawfully possessed the weapon with a purpose to intimidate his victim, who was chosen on the basis of race. The New Jersey court imposed an enhanced sentence.
Apprendi appealed, arguing that the Constitution required the fact that his crime was committed with purpose to intimidate on the basis of race to be proven to a jury beyond a reasonable doubt. 530 U.S. at 471. The United States Supreme Court considered the demands of the Sixth and Fourteenth Amendments and agreed, holding: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490.
Gould
Gould was convicted after a jury trial of three counts of child abuse. The trial court imposed upward durational departure sentences for two of the three convictions. On appeal, Gould argued that K.S.A. 2000 Supp. 21-4716, which authorizes imposition of upward departure sentences, was unconstitutional on its face, rendering her sentences void.
In Gould, we began by examining the central holding of Apprendi: “ ‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ ” 271 Kan. at 405-06 (quoting Apprendi, 530 U.S. at 490). We then turned to the text of K.S.A. 2000 Supp. 21-4716(a), which provides:
“The sentencing judge shall impose the presumptive sentence provided by the sentencing guidelines for crimes committed on or after July 1, 1993, unless the judge finds substantial and compelling reasons to impose a departure. If the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.”
We concluded:
“The district court made findings as to certain aggravating factors which increased Gould’s sentence beyond the statutory maximum. The district court, rather than the jury, made these findings as required by K.S.A. 2000 Supp. 21-4716(a). Apprendi requires that such findings be made by the jury beyond a reasonable doubt. Because Kansas law authorizing upward departure sentences directly contravenes this requirement, the law is unconstitutional.” 271 Kan. at 412.
The State argued that Gould’s sentences could withstand the constitutional infirmities of the Kansas scheme for upward departures because one of the factors supporting the upward departure was the fiduciary relationship between Gould and the victims, who were her children. Gould did not dispute the parent-child rela tionship; thus, the State reasoned that the matter need not be presented to a jury nor found beyond a reasonable doubt because it was not in question.
We disagreed, stating:
“The State, in essence, urges this court to apply principles of harmless error. This we cannot do. The Kansas scheme for imposing upward departure sentences, embodied in K.S.A. 2000 Supp. 21-4716, is unconstitutional on its face. Gould received a sentence beyond the statutory maximum based upon a court finding of certain aggravating factors found by a preponderance of the evidence. Apprendi, on the other hand, requires ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ 530 U.S. at 490. Any other procedure ‘is an unacceptable departure from the juiy tradition that is an indispensable part of our criminal justice system,’ 530 U.S. at 497. Gould’s sentence was imposed pursuant to an unconstitutional sentencing scheme and cannot stand.” 271 Kan. at 413.
Analysis
Kneil argues that her sentence, like Gould’s, was imposed pursuant to an unconstitutional sentencing scheme and is void. The plain language of Gould suggests this is so. The State distinguishes Gould on the basis that Kneil pled guilty, thus waiving her right to a jury trial and, consequently, her right to have a jury determine beyond a reasonable doubt any aggravating factors supporting her departure sentence.
We need not reach the State’s arguments because in Gould we declared K.S.A. 2000 Supp. 21-4716 relating to imposing upward departure sentences unconstitutional on its face. Further, we rejected the State’s invitation in Gould to work around the flawed sentencing scheme even though Gould did not dispute the existence of a fact supporting her upward departure sentence. The State extends the same invitation here, but in the instant case we have even less motivation to accept. By entering a plea of guilty to felony theft, Kneil did not admit she was not amenable to probation, nor did she admit any other fact which might support an upward departure sentence. See State v. Cody, 272 Kan. 564, 35 P.3d 800 (2001). The State simply fails to present a valid reason for retreating from our holding in Gould.
The Kansas scheme for imposing upward departure sentences, embodied in K.S.A. 2000 Supp. 21-4716, is unconstitutional on its face. Kneil received an underlying sentence beyond the statutory maximum. Under our holding in Gould, her sentence must be vacated.
Kneil’s sentence is vacated. The matter is remanded for resentencing. | [
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Per Curiam:
This is an original proceeding relating to judicial conduct against the respondent, George A. Groneman, District Judge of Wyandotte County, Kansas. In a formal proceeding before the Commission on Judicial Qualifications, the respondent was charged with violating the provisions of Canons 1 (2001 Kan. Ct. R. Annot. 489); 2A and 2B (2001 Kan. Ct. R. Annot. 489); and 3C(1), (2), and (4) (2001 Kan. Ct. R. Annot. 491) of the Rules of the Supreme Court Relating to Judicial Conduct, as set out in Rule 601A of the Rules of the Kansas Supreme Court. The respondent stipulated to violations of the above Canons.
Based on its findings and conclusions, the Commission recommended that the respondent be (1) publically censured, (2) required to repay the sum of $1,047.95 to the State of Kansas; (3) pay the costs of this action; and (4) author a letter to be mailed to all judges of general jurisdiction in the state judicial system and all full-time judges who are part of the state judicial system apologizing for the mistakes he made resulting in the admitted ethical violations and urging each judicial officer to pay utmost attention to administrative rules and regulations, particularly personnel rules, as well as normal adjudicative duties of the office.
The respondent has stipulated to the facts and urges this court to follow the recommendations of the Commission on Judicial Qualifications. We therefore have no issues of fact or law.
In pertinent part, the Notice of Formal Proceedings states:
“It is alleged that Respondent, the Honorable George A. Groneman, who was at the time a district judge of the 29th Judicial District, did engage in certain conduct which conduct violated the provisions of Canons 1; 2A; 2B; and 3C(1),(2),(4) of the Rules of the Supreme Court Relating to Judicial Conduct, as set out in Rule 601A of the Rules of the Kansas Supreme Court which provide, inter alia:
“Canon 1
‘A judge shall uphold the integrity and independence of the judiciaiy.
‘A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe these standards so that the integrity and independence of the judiciaiy will be observed.”
“Canon 2
‘A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.
‘A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciaiy.
‘B. A judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; . . .’
“Canon 3
‘A judge shall perform the duties of judicial office impartially and diligently. ‘C. Administrative Responsibilities.
‘(1) A judge shall diligently discharge the judge’s administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business.
‘(2) A judge shall require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.
‘(4) ... A judge shall not approve compensation of appointees beyond the fair value of services rendered.’
“It is alleged that in violation of the foregoing Canons, Respondent, at the times set out below, did engage in inappropriate conduct. The factual allegations relevant to such conduct include the following.
“I. At all times relevant hereto, Respondent was a Judge of the 29th Judicial District, Division 7, District Court, Kansas City, Kansas.
“2. Commencing May 18, 1997, Debra Massey was appointed administrative assistant to Respondent.
“3. Commencing in September, 1998, Respondent allowed his administrative assistant, Debra Massey, to accept and work at a second job other than that as administrative assistant for Respondent, to-wit: employment with the Kansas Turnpike Authority, and to work at said second job employment at times that conflicted with performance of her duties as administrative assistant to the Court.
"4. This dual employment situation existed from September, 1998, through October 20, 1999, and Debra Massey in fact was employed by the Kansas Turnpike Authority and paid by the Kansas Turnpike Authority for hours worked at various times between September, 1998, and October 20, 1999, but which conflicted with her obligations and performance of her duties as administrative assistant to Respondent.
“5. During the times referenced herein in paragraphs 3 and 4 hereof, Respondent violated Personnel Rules 5.13 and 9.1 of die Kansas Judicial Branch by knowingly permitting Debra Massey to be employed at times with and compensated for the hours worked, by said Turnpike Authority, and in addition to be paid by the Judicial Branch of the State of Kansas, for the same hours.
“6. Concerning the times in question and the actions of said Debra Massey, as alleged in paragraphs 3 and 4 hereof, Respondent signed documents known as State of Kansas, Time and Leave Documents, required in the administration of personnel of the Judicial Branch, State of Kansas, that falsely claimed or represented that said Debra Massey was working at her Judicial Branch employment as Respondent’s administrative assistant, at times when she was, in fact, working at the Kansas Turnpike Authority, as set forth previously.
“7. Respondent, concerning the documents referred to in paragraph 6 hereof, did indicate by his approval as Debra Massey’s supervisor, (hat she was in fact working for the Judicial Branch of government, at times set forth in paragraphs 3 and 4 hereof when she was in fact not so actively employed, but was instead working for the Kansas Turnpike Authority.”
The Commission on Judicial Qualifications then issued the following order:
“NOW, on this 30th day of August 2001, comes on for hearing the above referenced proceeding. Respondent appears in person and by his counsel, John J. Ambrosio and Kathleen Downey Ambrosio, his attorneys of record; and Edward G. Collister, Jr., appearing as Examiner for the Commission on Judicial Qualifications to present evidence in support of the Notice of Formal Proceedings.
“Whereupon, after the hearing opened, counsel advised the panel that, prior to commencing the record, counsel and Respondent agreed to recommend to the hearing panel as among counsel and Respondent as follows:
“(a) The proceeding may be submitted to the panel as to factual matters on a stipulation as to facts and exhibits constituting documentary evidence previously agreed upon and submitted to the individual panel members;
“(b) Two additional exhibits may be received by agreement, to-wit: an exhibit marked Joint Exhibit #8, constituting excerpts of the preliminary hearing testimony of Respondent in Wyandotte County District Court Case No. 00 CR 1209 and excerpts of testimony of Respondent in Wyandotte County District Court Case No. 00 CR 1209; and Joint Exhibit #9, Respondent’s mitigation evidence consisting of 28 Affidavits submitted on behalf of Respondent addressing only the issue of mitigation;
“(c) Respondent admits there are ethical violations based on the stipulated evidence as alleged in the Notice of Formal Proceedings; and
“(d) A recommended disposition jointly submitted by counsel and Respondent should consist of: (1) public censure as authorized by Rule 620(a) of the Rules of the Supreme Court Relating to Judicial Conduct; (2) Respondent’s agreement to repay to the State of Kansas the sum of $1,047.95, as itemized in Joint Exhibit #2; (3) Respondent to pay the costs of the action; and (4) Respondent to author a letter to be written to all judges of general jurisdiction in the state judicial system and all full-time judges who are párt of the state judicial system apologizing for the mistakes that he made resulting in the admitted ethical violations and urging each judicial officer to pay utmost attention to administrative rules and regulations, particularly personnel rules, as well as normal adjudicative duties of the office.
“Whereupon, the Chair of the hearing panel, Hon. Theodore B. Ice, announced that the panel members having been apprised of the stipulations between counsel previously identified, and having had the opportunity to review significantportions of the stipulated evidence prior to today’s hearing, had determined while in recess to accept the recommended resolution made by the parties and to enter an order reflecting its recommendations to the Supreme Court pursuant to Rule 620(a) accordingly.
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
“1. The Stipulation signed by counsel establishing facts and admissibility of factual exhibits is approved and received and filed, thus determining the factual basis upon which this case is presented.
“2. Proffered Exhibits #1, #2, #3, #4, #6, #7, #8, and #9 offered at the hearing should be received pursuant to stipulation and admitted into evidence. It should be noted that the Exhibits mentioned in paragraphs 19, 22 and 23 of the written Stipulation referred to previously were not offered at the hearing and therefore are not part of the record.
“3. The facts established by die evidence submitted to the hearing panel establish by a clear and convincing standard of proof the accuracy of the factual allegations of the Notice of Formal Proceedings as pled.
“4. Based upon the factual determinations arrived at as set forth previously, the hearing panel finds that violations of the Canons of Judicial Conduct as adopted by the Kansas Supreme Court have occurred as pled in the Notice of Formal Proceedings. The conclusions of law include the following: violations of Canons 1, 2A, 2B, and 3C(1), (2), and (4).
“5. As to discipline, the hearing panel of the Commission on Judicial Qualifications recommends the discipline of public censure, restitution of the amount of $1,047.95 to be paid by Respondent forthwith, payment of the costs of the action by Respondent, and the authoring and mailing of a letter to all judges of general jurisdiction in the state judicial system and all full-time judges who are part of the state judicial system apologizing for the mistakes that Respondent made resulting in the admission of ethical violations and urging each judicial officer to pay utmost attention to administrative rules and regulations, particularly personnel rules, as well as normal adjudicative duties of the office of judge.”
The court adopts the above order as its own.
In In re Handy, 254 Kan. 581, 598, 867 P.2d 341 (1994), this court stated:
“Public confidence in the judicial system is eroded by irresponsible and improper conduct by judges. We have concluded that respondent’s act constituted violations of the Canons of Judicial Conduct, as set forth above. The acts of respondent are inimical to and incompatible with the high standards of conduct imposed on members of the judiciary.”
While we are not bound by the recommendations of the Commission on Judicial Qualifications, the conduct of the respondent merits discipline no less substantial than that recommended by the Commission.
We therefore publically censure George A. Groneman, and he is directed to pay the costs of this proceeding. He has heretofore complied with reimbursing the State of Kansas for the money paid to the employee by the State of Kansas when the employee should have been working for the State of Kansas and has written and mailed a letter to all the judges in the state of Kansas in compliance with the above order.
This order shall be published in the official Kansas Reports and shall constitute the public record in this matter.
It Is So Ordered.
Davis, J., not participating.
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The opinion of the court was delivered by
Allegrucci, J.:
Michael A. Brown appeals his jury conviction of premeditated first-degree murder and his sentence to a hard 40 term of imprisonment.
On December 22, 1998, several friends and a woman named Tanya Yokum spent the evening with Pat Painter in the living room of his small house in Kansas City, Kansas. The friends were defendant, Lennon Moye, and Brian Hicks. Painter and the others drank beer and smoked marijuana. All but Hicks, who had sold crack cocaine to the others, smoked cocaine also. Painter accepted some clothes from defendant in trade for a $20 rock of crack cocaine. Drugs were sold to other people who came to the door that night.
All five people slept overnight in Painter’s living room, where there was a space heater. Because there was no gas service to the house, Painter nailed a blanket over the doorway into the bedroom in an effort to keep the living room warm while they slept. When drug customers came to the door after Hicks went to sleep, Painter would take their money, get the drugs from Hicks, and send the customers on their way.
When Painter awoke at approximately 7 a.m. on December 23, defendant was standing over Hicks and hitting him with the hammer that had been used to nail up the blanket. Defendant looked over at Painter and continued hitting Hicks. According to Painter, Moye jumped up and tried to wrestle the hammer away from defendant. Neither Moye nor defendant had a gun. They struggled for several minutes before Moye was able to get the upper hand. Moye got Hicks’ gun, which had been in Hicks’ pocket as he slept. Painter and Tanya left the house. Painter ran down the street to Hicks’ mother’s house and woke his sister.
When Moye awoke, defendant was standing over Hicks and hitting him in the head with a hammer. Moye said that Hicks remained on top of a dresser where he had slept during the night. Moye testified that defendant had Moye’s gun in his hand. Defendant turned the gun on Moye and told him he was being robbed. Meanwhile, Hicks was trying to get to his feet. Moye threw money and drugs from his pockets at defendant. As defendant was working to get the gun unjammed, Moye pleaded with defendant to let him take Hicks to the hospital. Defendant said they were all going to die. Then defendant went out the front door and immediately came back in. He went back to the still conscious Hicks and delivered one more blow with the hammer. The final blow was so forceful that the hammer sank into Hicks’ skull. Moye tackled defendant, they wrestled for the gun, and Moye got it away. Moye then found some hair clippers to hit defendant with.
When the police arrived at Painter’s house, an ambulance already was leaving with Hicks. Inside the house Moye, with electric hair clippers in his hand, was holding defendant down. Defendant was lying face down on the floor with a hammer in his hand.
Police found three guns in the house. One was a black handgun, which was lying on the floor near Moye and defendant. It was jammed.
In Hicks’ clothing, medical personnel found a ziplock bag containing approximately 25 to 30 rocks of crack cocaine. At the hospital, the only money found on Hicks were some coins. Painter claimed that Hicks had two or three thousand dollars on him before the fight broke out. In Painter’s house, police found 19 baggies of suspected marijuana in a jacket pocket. No large amounts of cash were found at the house. Bills totaling $35 were scattered around the living room floor.
On December 24, defendant gave a statement to police in which he claimed that he struck Hicks in self-defense. Defendant gave police this account: He went to Painter’s house to buy marijuana and Hicks opened the door for him. Painter, Moye, and a woman he did not know were sleeping in the living room. When defendant pulled out his money to pay for the marijuana, Hicks, with a gun lying nearby, told defendant to hand over all his money. When defendant refused, Hicks hit defendant twice with the butt of the gun. Defendant spied the hammer and grabbed it. Defendant hit Hicks in the head with the hammer. As Hicks was falling back, he tried to fire a gun at defendant, but the gun jammed. Fearing for his fife, defendant continued hitting Hicks with the hammer. Moye jumped up, began fighting with defendant, and took the hammer from him.
Hicks died as a result of blunt trauma to his head. The wounds to his head were in pairs, which were consistent with blows from the claw end of the hammer. Hicks had no defensive injuries. In the pathologist/coroner’s opinion, the absence of defensive wounds indicated that Hicks was unable to ward off blows due to sleep, lack of consciousness, or being restrained.
The jury was instructed on self-defense. It convicted defendant of the premeditated first-degree murder of Hicks and acquitted defendant of an aggravated robbery of Moye.
We first consider whether the trial court erred in responding in writing to a question asked by the jury. The manner and extent of a trial court’s response to a jury request for further information rests in the trial court’s discretion. State v. Sperry, 267 Kan. 287, 311, 978 P.2d 933 (1999). The trial court received the following written question from the deliberating jury: “What is the definition of premeditation? in laymen terms.” The trial court responded in writing: “Please refer to the instruction which defines ‘premeditation.’ That is the best definition I can give you.” The trial court’s referring the jury to an instruction that defines the term in question is approved standard procedure for responding to a jury’s request for a definition. See Sperry, 267 Kan. at 311.
Brown contends, however, that the response was inappropriate in this case due to an alleged inadequacy of the pattern instruction (PIK Crim. 3d 56.04[b]) defining “premeditation.” His argument has no place in this appeal where there was no objection to the pattern instruction given. See K.S.A. 2000 Supp. 22-3414(3). Moreover, in State v. Jamison, 269 Kan. 564, 573, 7 P.3d 1204 (2000), a majority of this court reaffirmed the PIK Crim. 3d 56.04(b) definition of premeditation.
Brown also argues that the trial court’s response to the question without having him present violated both his statutory and constitutional Sixth Amendment right to be present at all stages of his trial. K.S.A. 22-3420(3) provides that once the jury has begun deliberating, any question from the jury concerning the law or evidence pertaining to the case should be answered in open court in the defendant’s presence. Likewise, K.S.A. 2000 Supp. 22-3405 and the Sixth Amendment require that a defendant be present at every critical stage of the trial.
In State v. Bell, 266 Kan. 896, 975 P.2d 239 (1999), the identical issue was raised. There, the trial court’s response to a jury question during deliberations was not made in the defendant’s presence and over his counsel’s objection. We noted that both the Kansas statutes and the Sixth Amendment require the defendant’s presence at all critical stages of a trial. We concluded that Bell’s statutory and constitutional right to be present was violated. However, this , court applied the harmless error rule and concluded the error was harmless. That rule provides: “ "An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. [Citations omitted.] Thus, before we may declare the error harmless, we must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. [Citation omitted.]’ Crease v. State, 252 Kan. 326, 334, 845 P.2d 27 (1992) (quoting State v. White, 246 Kan. 28, 37, 785 P.2d 950, aff'd as modified 246 Kan. 393, 789 P.2d 1175 [1990].” Bell, 266 Kan. at 920.
In this case, the jury’s question was a straightforward question of law, and the response given by the trial judge to the jury’s inquiry was correct as a matter of law. There is no reason to think that input from defendant could, would, or should have caused the trial judge to give a different response to the jury. Defendant’s not being present when the trial court made its response had little, if any, likelihood of changing the verdict. We conclude it was harmless error.
Brown’s appellate counsel also argues that the trial court’s response violated defendant’s right to a fair and impartial jury. As already discussed, the response referred the jury to an approved definition of premeditation. Defendant claims that he was deprived of due process because the trial court did not make a transcribable record of responding to the jury question and denied effective assistance of appellate counsel, whose briefing of the issue allegedly was hampered by the lack of a transcript. Brown’s counsel cites State v. Lumbrera, 252 Kan. 54, 73, 845 P.2d 609 (1992), which does not support his claim. With no discussion of constitutional rights, the court stated: “Closing arguments, in criminal cases particularly, should be of record. We conclude it was error not to have the closing arguments of record herein. We need not determine the extent of prejudice resulting therefrom as we are reversing on the basis of cumulative error.” 252 Kan. at 73. The issue in the present case involves nothing more than the trial court’s referring the jury to the instructions. It is not a controversy over closing arguments or any other portion of trial in which the words spoken by counsel might be determinative of the issue. In this case, the jury’s question and the trial judge’s response are in the record. Moreover, we know from a post-trial addition to the record, signed by the prosecuting attorney, Brown’s defense counsel, and the trial judge, that defense counsel was present with the judge in chambers, discussed the appropriate response, and had no objections. There is no merit to defendant’s argument.
Brown next argues that there was not sufficient evidence to support the conviction. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000). In support of Brown’s contention that there was a failure of proof that he killed Hicks with premeditation, he asserts that the State’s supporting testimony either was speculative or was not credible.
Defendant urges the court to consider as an indication of his lack of premeditation that the weapon he used in killing Hicks was a hammer lying at hand, rather than a weapon that defendant brought into the house. Evidence that defendant did not take a weapon with him into the house might rule out any notion that he went to Painter’s with the intention of killing someone there. It has no bearing, however, on what defendant thought while he spent a number of hours in the house with the victim.
Defendant also directs the court’s attention to his statement to police in which he said that he was being robbed by Hicks and that Hicks hit him with the butt of a gun. However, the court’s task is to review the evidence in the fight most favorable to the State. Here, there was evidence of premeditation that is favorable to the prosecution, and it is the measure of sufficiency. There was evidence from eyewitnesses that Hicks did not appear to have moved from where fie had slept before defendant began hitting him in the head with a hammer. There also was evidence from the autopsy of a complete absence of defensive injuries. In the pathologist’s opinion, die absence of defensive injuries to a victim who died from hammer blows to the head indicated that the victim was unable to ward off the blows. Whatever prevented Hicks from putting his hands up to protect himself need not be identified in order for the factfinder to draw a reasonable inference that defendant did not act from provocation. Furthermore, there was evidence that the final blow was delivered after defendant left the house and then returned to hit Hicks once more. With a lack of provocation and a helpless victim, a rational factfinder could have found beyond reasonable doubt that the killing was premeditated.
Defendant next complains that the trial court failed to give PIK Crim. 3d 52.18-A, which instructs jurors to consider with caution the testimony of an informant. Defendant did not ask the trial court to give the instruction. Even if he had requested an informant instruction, the trial court would have been correct to refuse to give it because there was no informant, within the meaning of the pattern instruction, who testified in the trial of this case.
In State v. Barksdale, 266 Kan. 498, 973 P.2d 165 (1999), the court examined recent case law on the qualifications of an informant for purposes of PIK Crim. 3d 52.18-A. It concluded that “the crux of the definition is that an informant is a person who acts as an agent for the State in procuring information.” 266 Kan. at 514.
Defendant concedes that the witnesses in this case are not informants as defined in Barksdale. He also concedes that in State v. Conley, 270 Kan. 18, 24-25, 11 P.3d 1147 (2000), the court followed Barksdale in finding no error in the trial court’s not giving the informant pattern instruction with regard to Conley’s former cellmate, who had written to authorities offering information in exchange for benefits. Nonetheless, defendant would distinguish the present case on the ground that the witnesses — Painter, in particular, agreed to cooperate with the police in the hopes of some help with his outstanding warrants — and refused to give information without some benefit. The asserted refusal to talk without gaining some benefit seems to be what defendant views as the distinguishing feature. There is no substantive difference, however, between Conley’s cellmate conditioning his offer of information on personal advantage and Painter likewise conditioning his cooperation. in neither instance was the person acting as an agent of the State at the time he collected or gained the information. 270 Kan. at 25. There is no merit to this argument.
Finally, Brown challenges his hard 40 sentence. At the outset, defendant complains that the State did not give notice that it intended to request a hard 40 sentence. A notice of intent by the State, which was required before 1994, is no longer necessary. Compare L. 1994, ch. 341, § 6 with L. 1990, ch. 99, § 4.
Defendant also claims as a preliminary matter that the trial court failed to make a record of its findings with regard to the hard 40 sentence. The completed sentencing journal entry of judgment form, though sketchy, would seem to be an adequate record in the circumstances. It satisfies the statutory requirement in K.S.A. 2000 Supp. 21-4635(c): “The court shall designate, in writing, the statutory aggravating circumstances which it found.” The sentencing judge noted his findings of aggravating and mitigating circumstances. He found that the statutory aggravating circumstances were that defendant knowingly or purposely killed or created a great risk of death to more than one person and that the crime was committed in an especially heinous, atrocious, or cruel manner. See K.S.A. 2000 Supp. 21-4636(b) and (f). He credited defendant’s not having a significant criminal history as a mitigating circumstance.
Next, defendant argues that there is not sufficient evidence to support either aggravating circumstance.
Especially heinous, atrocious, or cruel manner. Defendant’s position is that the evidence does not show that Hicks suffered serious mental anguish or serious physical abuse. Defendant was sentenced on August 13, 1999. On July 1, 1999, an amendment to K.S.A. 21-4636 became effective that enlarged the type of conduct the legislature would consider sufficient for a finding that a defendant killed the victim in an especially heinous, atrocious, or cruel manner. See L. 1999, ch. 138, § 1. Among the conduct specified by the legislature was the “infliction of mental anguish or physical abuse before the victim’s death.” K.S.A. 2000 Supp. 21-4636(f)(3).
Defendant argues that Hicks suffered neither mental anguish nor physical abuse. He mistakenly thinks that undisputed evidence is the standard. In defendant’s words: “While there was evidence that he was conscious during part of the melee that ensued after the initial blows were struck, there was also evidence that he lost consciousness after the final blow, and did not have a protracted period of suffering and pain.” The standard actually applied by this court where the sufficiency of the evidence is challenged for establishing the existence of an aggravating circumstance in a hard 40 sentencing proceeding is “whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence.” State v. Murillo, 269 Kan. 281, 287-88, 7 P.3d 264 (2000).
The evidence shows that defendant hit Hicks in the head with the claw end of a hammer. The pathologist found wounds from at least eight or nine blows. One of the blows broke Hicks’ skull without penetrating his brain; another blow not only broke his skull but also penetrated his brain. Moye testified that Hicks was conscious, crawling on the floor trying to get up after defendant hit him with the hammer. Moye also testified that defendant left the house for a short time, maybe 30 seconds, and then came back in. When the defendant reentered the house, Moye thought defendant was going to help Hicks. Defendant went over to Hicks, who was trying to get up, verbally encouraged him, and started to pick him up under the armpits. Then, according to Moye, defendant looked at Hicks, “clicked again,” and hit him in the head with the hammer with even more force than before. Viewing this evidence in a fight most favorable to the State, we conclude that a rational factfinder could have found by a preponderance of the evidence that defendant killed Hicks in an especially heinous, atrocious, or cruel manner.
Great risk of death to more than one person. Defendant argues that his killing Hicks posed no risk of death to anyone else until Moye intervened, and, because Moye put himself in harm’s way, any risk of death to Moye is not evidence that supports the aggravating circumstance. He relies on State v. Spain, 263 Kan. 708, 718, 953 P.2d 1004 (1998).
The question in Spain was not whether a bystander’s intervention may constitute defendant’s knowingly or purposely creating a great risk of death to more than one person. In Spain, the issue was whether defendant’s kidnapping a man many miles away several hours after killing the jail dispatcher and escaping constituted creating a great risk of death to more than one person within the meaning of the statute. See K.S.A. 2000 Supp. 21-4636(b). We concluded, as a matter of law, that the 21-4636(b) aggravating circumstance “require[d] a direct relationship between creating the great risk of death to another and the homicide. The risk need not be contemporaneous with the homicide, but it must occur in the course of committing the charged murder.” 263 Kan. at 718. In the present case, the risk to Moye occurred as he struggled with defendant immediately after defendant struck Hicks for the final time.
The State cites State v. Vontress, 266 Kan. 248, 258, 970 P.2d 42 (1998). Vontress entered the house of Tim Anderson and Ethel Spires looking for drugs and money. Anderson and Spires were forced to lie together on the floor. Anderson was shot in the head and killed. Spires was shot in the wrist and the shoulder. Vontress contended that he did not create a great risk of death to Spires for two reasons: He deliberately wounded Spires in such a way as to spare her life, and he did not wound Spires with the same shot that killed Anderson. The court rejected his argument on both grounds:
“Vontress misconstrues the aggravating factor of great risk of death to another person. It is not necessary that the defendant caused another person life-threatening injuries; it is necessary only that the defendant knowingly created a great risk of death to more than one person. The fact that Spires was shot in die shoulder and wrist does not compel the judge to find that Vontress intended to superficially wound Spires rather than place her at risk of death. Spires testified that she covered her head with her hands before she was shot. One bullet entered her wrist and the other entered her shoulder, severing the main artery to her arm. The position of Spires’ hand on her head at the time of the shooting supports the finding Vontress created a great risk of death to Spires.
“Vontress also contends that to find an aggravating circumstance in the fact he created a great risk of death to Spires, it was necessary to find that the shot he fired into Anderson’s head also created a great risk of death to Spires. Vontress interprets the law too narrowly. To support a finding that Vontress created a great risk of death to more than one person, there must be a direct relationship between risk of death to Spires and the killing of Anderson. See Spain, 263 Kan. at 716. It is not necessary that the same shot that killed Anderson threatened the life of Spires. It is enough that the crime committed created a risk of death for Spires. Clearly, evidence that both victims were shot during the commission of the crimes sustains such a finding in this case.” 266 Kan. at 258-59.
Although the facts of Vontress differ from those of the present case, Vontress provides some guidance. It holds that it is not necessary that the blows that killed Hicks also created a great risk of death to Moye. What is required is a direct relationship between risk of death to Moye and the killing of Hicks.
Here, according to Moye, after defendant already had struck Hicks a number of times, defendant said they were all going to die. Then defendant went out the front door and immediately came back in. He went back to the still conscious Hicks and delivered one more blow with the hammer. The final blow was so forceful that the hammer sank into Hicks’ skull. Moye tackled defendant, who had the jammed gun in one hand and the hammer in the other. Moye got the gun away and then found some hair clippers to hit defendant with. The only evidence that defendant expressed any intention of harming anyone other than Hicks was the statement reported by Moye — that they were all going to die. Moye testified that defendant made that statement and then went out the front door. There was evidence that Moye sustained some injuries in the fight with defendant, but no evidence that would show that his injuries were life-threatening or that they were inflicted in a life-threatening manner. The only evidence that defendant may have tried or intended to try to inflict fife-threatening injuries on Moye was Moye’s testimony that defendant pointed the jammed gun at him.
Defendant argues that the evidence of his pointing the gun at Moye has been discredited by the jury’s acquitting him of the charge of aggravated robbery of Moye. According to defendant, the not guilty verdict shows that the jury did not credit Moye’s testimony about defendant’s pointing the gun at him and announcing a robbery. There are several reasons, however, why we do not discount Moye’s testimony. The first is that the jury’s reason for finding defendant not guilty on the aggravated robbery charge may not have been disbelief of Moye’s testimony about being threatened with the gun. In addition, in reviewing evidence of aggravating circumstances, the court views all the evidence in the light most favorable to the prosecution.
A review of the court’s opinions in hard 40 cases involving the aggravating circumstance of creating a great risk of death to more than one person reveals none with facts like those of the present case. In State v. Brady, 261 Kan. 109, 113-17, 929 P.2d 132 (1996), the defendant murdered two people. In Spain, 263 Kan. at 718, defendant’s act of kidnapping was too remote in time and distance from the murder of the prior victim and did not create a great risk of death to the kidnap victim. In State v. Perry, 266 Kan. 224, 233-35, 968 P.2d 674 (1998), defendant shot and killed one person and shot and wounded two other members of the murder victim’s family. In State v. Wakefield, 267 Kan. 116, 141-43, 977 P.2d 941 (1999), defendant shot and killed two people. In State v. Hazelton, 267 Kan. 384, 387-88, 985 P.2d 698 (1999), defendant shot and killed one person and shot and wounded another. In State v. Jamison, 269 Kan. 564, 574-75, 7 P.3d 1204 (2000), defendant shot and killed two people. In State v. Lopez, 271 Kan. 119, 139-40, 22 P.3d 1040 (2001), defendant, who was in the backseat of an automobile traveling at a normal rate of speed on a well-traveled roadway, shot the driver in the head. Defendant’s girlfriend was in the front passenger seat. As the driver fell from the vehicle, it jumped the curb and crashed into a brick building. In State v. Coleman, 271 Kan. 733, 741, 26 P.3d 613 (2001), defendant fired shots while driving by a gang rival’s house. A young girl, who was crossing the street with a companion, died from a gunshot wound.
In Allen v. State, 923 P.2d 613 (Okla. Crim. 1996), the Oklahoma court found that the evidence was insufficient to prove beyond a reasonable doubt that Allen knowingly created a great risk of death to more than one person. 923 P.2d at 620-21. Allen shot his former girlfriend outside the day care center where she had gone to pick up their young sons. After she fell and Allen was walking away, a day care employee ran to aid the victim. As the worker was about to get the victim into the building, Allen returned. He pushed the worker inside and slammed the door before he pushed the victim down on the outside steps and shot her three times in the back at close range. The court did not believe that the worker, who was inside the building when each of the shots was fired, was placed at great risk of death by defendant’s actions. 923 P.2d at 620. The court also rejected the proposition that a police officer, who responded to a 911 call and struggled with Allen, was placed at great risk of death within the meaning of the statute. The court reasoned that “Allen’s driving intent to kill [his former girlfriend] ended after he killed her on the day care steps; his attack on Officer Taylor was driven by the independent intent to escape.” 923 P.2d at 621.
Death penalty cases from other jurisdictions have very limited precedential value for Kansas’ hard 40 sentencing matters. Spain, 263 Kan. at 709. However, in the absence of any hard 40 cases with more precedential value, the Oklahoma court’s reasoning is worth noting. The Oklahoma day care worker’s attempt to help the victim did not put her in contact with the defendant when he was shooting the victim, and the police officer’s struggle with the defendant occurred as the defendant was trying to escape. In comparison, Moye testified that he did not attack the defendant while the defendant was attacking Hicks. Moye’s attack on defendant occurred after defendant left the house once, returned, and struck the final blow to Hicks’ head. Painter’s testimony made it seem as if almost no time elapsed between defendant’s hitting Hicks and Moye’s tackling defendant, but Painter did not indicate that Moye endangered his own fife by grabbing defendant. The greatest threat to Moye’s safety occurred when defendant pointed the gun at him, which was an act driven by the independent intent of robbery. Moye’s fight with defendant and eventual success in pinning defendant to the floor were not shown to involve a great risk of death to Moye. There was no direct relationship between the killing of Hicks and a risk of death to Moye. Thus, we find the evidence insufficient to establish that defendant created a great risk of death to more than one person.
There remains one aggravating circumstance and one mitigating circumstance. The circumstance of striking the victim some eight or nine times with a claw hammer, some blows delivered while the victim was crawling around on the floor, clearly outweighs the circumstance of no substantial criminal record. The overwhelming disparity between the two circumstances makes remand to the trial court for reweighing unnecessary. We find the facts of this case that the mitigating circumstance does not outweigh the aggravating circumstance.
Affirmed. | [
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The opinion of the court was delivered by
’ Brazil, J.:
Arctic Financial (Arctic) is a New Jersey corporation. It is a shareholder in OTR Express, Inc. (OTR), a Kansas corporation. In this stockholder’s action under K.S.A. 17-6510, for inspection of corporate books and records, the district court dismissed Arctic’s case following OTR’s motion for summary judgment, finding that Arctic failed to prove a proper purpose for inspection. Arctic appeals.
On February 25, 2000, Arctic served OTR a written demand for inspection of the by-laws, stock register, fist of shareholders, records of the proceedings of the stockholders and of the directors, and other unidentified books and records.
Arctic’s stated purpose for the inspection was:
“[T]o inspect and/or copy the information requested in order to more closely examine management’s effectiveness in dealing with the volatile tracking industry environment and the recent turmoil in OTR’s management, and to ascertain whether or not there are large voting blocks of shareholders that may be hindering effective management.”
Arctic’s petition alleged that OTR refused to permit the above request and asked the court to order OTR to comply. OTR alleged in its answer it had already allowed Arctic access to OTR’s stock ledger.
OTR subsequently filed a summary judgment motion and memorandum in support on November 22, 2000. It argued that Arctic failed to show a proper purpose for inspection. Arctic filed its memorandum opposing OTR’s summary judgment motion along with an affidavit, deposition testimony, and other documentary evidence. The district court granted OTR summary judgment on April 24, 2001.
Arctic first argues that the district court erred in finding its demand for inspection failed to state a proper purpose.
Kansas law gives shareholders the right to inspect corporate books and records:
“(b) Any stockholder . . . shall have the right ... to inspect for any proper purpose the corporation’s bylaws, stock register, a list of its stockholders, books of account, records of the proceedings of the stockholders and directors and the corporation’s other books and records, and to make copies or extracts therefrom.” (Emphasis added.) K.S.A. 17-6510(b).
The statutes define “proper purpose” as “a purpose reasonably related to such person’s interest as a stockholder.” K.S.A. 17-6510(b). The issue in the present case is whether Arctic’s purpose is a proper purpose.
In the event the corporation refuses the shareholder’s demand, the statute provides for a judicial remedy:
“(c) If the corporation . . . refuses to permit an inspection sought by a stockholder . . . pursuant to subsection (b) . . . the stockholder may apply to the district court for an order to compel such inspection. The district court is hereby vested with exclusive jurisdiction to determine whether or not the person seeking inspection is entitled to the inspection sought.” K.S.A. 17-6150(c).
The statute grants the district court the “exclusive jurisdiction to determine whether or not the person seeking inspection is entitled to the inspection sought.” K.S.A. 17-6510(c). Furthermore, the statute provides the district court “in its discretion, may prescribe any limitations or conditions.” (Emphasis added.) K.S.A. 17-6510(c).
The statute also assigns the burden of proof, distinguishing between corporate books and records on one hand and the corporation’s stock ledger and list of stockholders on the other hand. K.S.A. 17-6510(c). As discussed above, OTR’s answer allegedithad already furnished its stock ledger to Arctic, thus, the burden of proof is on Arctic:
‘Where the stockholder seeks to inspect the corporation’s books and records, other than its stock ledger or list of stockholders, such stockholder shall first establish (1) that such stockholder has complied with the provisions of this section respecting the form and manner of making demand for inspection of such doc uments; and (2) that the inspection such stockholder seeks is for a proper purpose.” K.S.A. 17-6510(c).
In the absence of Kansas cases construing K.S.A. 17-6510, we do not hesitate to consider Delaware case law. As this court noted in Arnaud v. Stockgrowers Bank, 268 Kan. 163, 165, 992 P.2d 216 (1999), “Kansas courts have a long history ... of looking to the decisions of the Delaware courts involving corporation law, as the Kansas Corporation Code was modeled after the Delaware Code.”
Security First v. U. S. Die Casting & Development, 687 A.2d 563 (Del. 1997), provides some guidance in defining what constitutes a proper purpose under its comparable statute, Del. Code Ann. tit. 8, § 220. The corporation, Security First, was a bank holding company. The shareholder, U.S. Die, demanded to inspect Security First books and records relating to a failed merger agreement between Security First and another bank holding corporation.
The court began its analysis by stating the circumstances under which a shareholder relying on the proper purpose of mismanagement will be entitled to inspection:
“It is well established that investigation of mismanagement is a proper purpose for a Section 220 books and records inspection. A stockholder’s entitlement to inspection of corporate books and records depends on whether or not a credible basis to find probable wrongdoing on the part of corporate mismanagement has been established. At the trial of a summary proceeding under Section 220(d), the plaintiff must show the credible basis by a preponderance of the evidence. The actual wrongdoing itself need not be proved in a Section 220 proceeding, however.” 687 A.2d at 567.
Responding to the corporation’s argument that the stockholder failed to produce any actual evidence of mismanagement, the court stated:
“In a Section 220 action, a stockholder has the burden of proof to demonstrate a proper purpose, but a stockholder is ‘not required to prove by a preponderance of the evidence that waste and [mis]management are actually occurring.’ The threshold for the plaintiff in a Section 220 case is not insubstantial. Mere curiosity or a desire for a fishing expedition will not suffice. But the threshold may be satisfied by a credible showing, through documents, logic, testimony or otherwise, that there are legitimate issues of wrongdoing.” 687 A.2d at 568.
U.S. Die asserted three aspects of alleged mismanagement. First, that Security First paid Mid Am $275,000 following the failed merger when, according to U.S. Die, a payment above $250,000 was not contemplated by the merger agreement. Second, Security First agreed in the merger termination agreement to pay Mid Am money contingent on “certain occurrences,” which according to U.S. Die, would either take Security First “out of play” or diminish the shareholders’ value. 687 A.2d at 568. Third, management had increased a dividend to “ameliorate” shareholder anger over the drop in stock price following the failed merger. 687 A.2d at 568-69.
The Security First court deferred to the lower court’s witness credibility determination and, therefore, accepted the proposition that U.S. Die had presented a proper purpose based on the above allegations. 687 A.2d at 569.
It should be noted, the Security First court went on to evaluate the lower court’s scope of inspection order, finding the lower court’s order allowing inspection was overly broad. 687 A.2d at 570. (“We find that plaintiff has not met its burden of proof on this record to establish that each category of books and records requested is essential and sufficient to its stated purpose.”) Thus, the case was remanded for an adjustment of the scope of the inspection. 687 A.2d at 571.
In the present case, Arctic’s demand identified Arctic as a shareholder of OTR and stated three areas of possible ineffective management as its purpose for wanting to inspect the books and records. Assuming ineffective management is the equivalent of mismanagement, it would be a proper purpose in Delaware. See Security First, 687 A.2d at 567. (“It is well established that investigation of mismanagement is a proper purpose for a Section 220 books and records inspection.”)
Following Delaware law, mismanagement constitutes a proper purpose under K.S.A. 17-6510, entitling Arctic to an evidentiary hearing to show by a preponderance of the evidence, not mismanagement, but the possibility of mismanagement. Once that burden is met, the district court must determine the scope of the inspection to which Arctic is entitled.
However, unlike Security First that went to an evidentiary hearing, OTR filed a motion for summary judgment. OTR’s motion asserted that Arctic’s demand did not specify a proper purpose for the inspection; that the demand for inspection and Arctic’s petition were inconsistent with Arctic’s role as a shareholder; and that the demand did not identify, with any level of specificity, the documents Arctic was seeking.
Finally, OTR argued that Arctic’s demand failed on its face to meet the requirements of K.S.A. 17-6510 and that OTR was entitled to judgment as a matter of law.
Both parties in their briefs on appeal concede the usual standard of review for civil summary judgment cases. That standard is well known:
“Summary judgment is appropriate when the pleading, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
Arctic argues the district court erred in granting summary judgment because genuine issues of material fact existed. The assumption, which is never explicitly argued by Arctic, is that the district court ignored the affidavit of Arctic’s president, Raymond Povalski, and deposition testimony of Gary Klusman, a former officer of OTR. OTR argues in its brief on appeal that “[t]he motion for summary judgment could be, and properly was, decided based upon the face-of Appellant’s demand for inspection itself.” The district court in its memorandum decision held:
“[Arctic] has failed to adduce specific evidence of mismanagement to support its demand for inspection of OTR’s books, records, and records of proceedings and to sustain its burden that inspection is for a proper purpose. [Arctic] argues that during this summary judgment proceeding it should be permitted to buttress its demand for inspection and cure any deficiencies in its initial complaint by adding additional allegations to support the possibility of mismanagement. Although Thomas ér Betts, permitted an arguable technical deficiency in a shareholder’s demand for inspection to be cured ‘[wjhere the shareholder established its purpose with specificity in depositions, at trial, and in its posttrial memoranda,’ this applied to only the inspection of the shareholder list. [Citation omitted.] Where the demand for inspection seeks books and record to investigate possible mismanagement, the evidentiary burden is greater than normal and it rests with the shareholder. [Citation omitted.] Without reciting a specific basis for its demand for inspection of books and records, Plaintiff has failed to meet this burden. Plaintiff s lack of specificity must result in its failure to make out a prima facie case of proper purpose for inspection of books and records. [Citation omitted.]”
The written district court decision never specifically addresses either the affidavit or the deposition testimony.
OTR is correct to note the shareholder’s demand should contain the purpose of the demand for inspection. K.S.A. 17-6510(b). However, it is unclear why the evidence required to sustain the shareholder’s burden of proof in K.S.A. 17-6510(c) need be included in the demand which is contemplated earlier in the statute at K.S.A. 17-65l0(a). The plain reading of the statute requires the demand to state the purpose. K.S.A. 17-6510(b). The burden of proof on the shareholder is articulated in K.S.A. 17-6510(c) in the context of a hearing on the shareholder’s request to get the district court to compel production of corporate records and books.
The district court cites to a chancery court opinion from Delaware, Thomas & Betts Corp. v. Leviton Mfg. Co., Inc., 685 A.2d 702 (Del. Ch. 1995). We refer to it as Thomas 6- Betts I. The case was appealed to the Delaware Supreme Court and reported in 681 A.2d 1026 (Del. 1996). We refer to the Supreme Court decision as Thomas & Betts II. In Thomas & Betts I, the chancery court rejected the corporation’s argument that the order for inspection should not be granted because the demand lacked specificity. 685 A.2d at 708. The court noted the depositions, triahtestimony, and post-trial memoranda established a proper purpose. 685 A.2d at 708. The district court in the present case considered the reasoning in this opinion but rejected it, finding it inapplicable because the Thomas & Betts I court was considering the request to see stock holder lists. However, it is clear Thomas 6- Betts I did not confine its analysis to the four comers of the demand with respect to the inspection of corporate books and records: “Levitón responds that Thomas & Betts’ waste and mismanagement claims are so lacking in record support that they cannot justify permitting it to inspect Leviton’s, or its subsidiaries’, books and records.” 685 A.2d at 710.
Apparently, the Thomas <& Betts I court disagreed that the record supported a finding that the corporation suffered from mismanagement, but that does not mean the court did not consider what the record contained. Thus, it is not clear what authority the district court in this case could have relied upon to exclude consideration of the affidavit and deposition testimony. Furthermore, a review of Thomas & Betts II shows that the court did not limit itself to the four comers of the demand for proof of a proper purpose. See 681 A.2d at 1032 (relying on lower court’s judgment of witness credibility).
Unfortunately, the district court also relied on Thomas ir Betts I to impose a higher burden of proof upon Arctic to justify its right to inspect the books and records: “Where the demand for inspection seeks books and record to investigate possible mismanagement, the evidentiary burden is greater than normal and it rests with the shareholder. Thomas & Betts, supra 685 A.2d at 710.”
The Thomas 6- Betts II court disapproved of that language in Thomas <b- Betts I: “The Court of Chancery incorrectly articulated the governing legal standard.” (Emphasis added.) 681 A.2d at 1031. The court further explained that “[a] general standard that a stockholder seeking inspection of books and records bears a greater-than-normal evidentiary burden’ is unclear and could be interpreted as placing an unduly difficult obstacle in the path of stockholders seeking to investigate waste and mismanagement.” 681 A.2d at 1031-32. Rather, the Delaware court called the burden of proof a normal one. 681 A.2d at 1028.
OTR argues it would “completely undermine the form and manner requirements of K.S.A. 17-6510 as well as the corporate-review mechanism of the statute if a stockholder was permitted to amend or supplement his demand for inspection after the corporation has passed upon the demand and the stockholder has brought suit to enforce it.” It is not clear why this would be the case. First, K.S.A. 17-6510(b) merely requires notice of a proper purpose in the demand. Second, it is not clear what incentive a stockholder would have to trick a corporation into rejecting an otherwise allowable demand and, thus, forcing a lawsuit to compel inspection. On the contrary, the stockholder would have every incentive to provide sufficient notice of the proper purpose to avoid these suits. Determination of the scope would require a balance of the rights of the shareholder against the rights of the corporation. The purpose of an action under K.S.A. 17-6510 is not to expose the corporation to a shareholder fishing expedition. See Security First, 687 A.2d at 571.
We reverse and remand with directions that the district court consider Arctic’s evidence and determine if Arctic has demonstrated, by a preponderance of the evidence, a proper purpose to justify its inspection of the books and records. If the court finds Arctic presents a proper purpose, the court may exercise its discretion in carefully limiting the inspection rights in a way that corresponds to the established purpose of the shareholder.
Reversed and remanded with directions.
Davis, J., not participating.
Brazil, Chief Judge Retired, assigned. | [
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The opinion of the court was delivered by
Six, J.:
Stuart Stover appeals his K.S.A. 2000 Supp. 8-1567(a)(3) driving under the influence (DUI) conviction. The only issue is whether Florida v. J.L., 529 U.S. 266, 146 L. Ed. 2d 254, 120 S. Ct. 1375 (2000), an anonymous tip case, characterizes the informant’s tip here as lacking sufficient indicia of reliability to justify the officer’s investigatory stop.
We hold that J.L. does not control here. The phone tip relied on to stop Stover was not anonymous. The officer’s investigatory stop was justified. Finding no error, we affirm.
Our jurisdiction is under K.S.A. 20-3018(c) (transfer on our own motion).
FACTS
On June 24, 2000, at 10:16 p.m., the City of Pratt Police Department received a call from Susan Barnes. Barnes reported that someone had been repeatedly driving by her house at 401 N. Jack son in Pratt, honking a car horn, and yelling profanities. She.said the driver would either do a u-turn or go around on Main Street and then drive back by her house. Barnes told the dispatcher that she thought the driver was drunk. She described the car as an older model, large, white, four-door car. She said, except for the center light, the three-light taillight on the passenger side was out.
In response to the telephone tip, Officer McGee was notified of the nature and location of the call. He drove to the 100 block of N. Jackson, parked, and turned off his headlights. A large, white, four-door car approached the 400 block of N. Jackson. The car slowed down at the intersection and turned left toward Main Street. Officer McGee did not observe any honking, yelling, cursing, or erratic driving associated with the car.
After running a check on the cars license tag, Officer McGee turned on his emergency lights and stopped the car. He asked Stover for his driver’s license and proof of insurance. Officer McGee smelled a strong odor of alcohol on Stover’s breath and administered field sobriety tests.
Stover was found guilty of DUI in municipal court. On appeal to the district court, Stover stipulated to Officer McGee’s observations in the investigative report and report on the field sobriety tests. Stover’s stipulation included the facts that he was driving the car and had: (1) a strong odor of alcohol, (2) slurred and soft speech, (3) bloodshot eyes, and (4) dirty clothes. He filed a motion to suppress all evidence seized after the stop. He argued that under J.L., 529 U.S. 266, Officer McGee performed an illegal stop based upon an uncorroborated telephone tip. After hearing testimony and considering the evidence, the district court denied Stover’s motion and found him guilty of DUI. See K.S.A. 2000 Supp. 8-1567(a)(3).
DISCUSSION
Stover contends that Barnes’ call to the dispatcher lacked sufficient indicia of reliability to justify Officer McGee’s investigatory stop under J.L., 529 U.S. 266. He argues that the district court erred in failing to grant his motion to suppress. His contention lacks merit.
The question here is whether Officer McGee, acting upon a tip given by Barnes, an identified caller, could reasonably detain Stover’s vehicle without personally observing some indicia of intoxication. Our resolution involves a question of law; thus, we have unlimited review. State v. Muck, 262 Kan. 459, 464, 939 P.2d 896 (1997). Barnes’ tip accurately described the car, accurately predicted its route and location, and reported that it was behaving in a manner indicative of drunk driving.
Stover states that the issue on appeal is whether J.L. overrules State v. Slater, 267 Kan. 694, 986 P.2d 1038 (1999). He contends that J.L. invalidates our analysis of anonymous tips in Slater. Stover focuses on the “unreasonable dangers” balancing test of Slater. In Slater, we said:
“In determining whether a stop of a motor vehicle violates the defendant’s Fourth Amendment rights, a court must balance die rights of die individual to privacy and freedom of movement with die right of die public to be protected from unreasonable dangers; the greater and more immediate die risk to the public revealed by the tip, the less important is die corroboration and reliability of the tip.” 267 Kan. 694, Syl. ¶ 6.
Stover extends his argument by observing that J.L. rejected Florida’s assertion that there should be a “firearm exception” to the Fourth Amendment to the United States Constitution for anonymous tips involving guns because of the potential danger to the public. 529 U.S. at 272.
A brief review of J.L. is appropriate. An anonymous caller reported that a young black male, standing at a particular bus stop wearing a plaid shirt, was carrying a gun. Officers went to the bus stop and saw 3 black males, one of whom, the defendant J.L., was wearing a plaid shirt. The officers neither saw a firearm nor observed any unusual movements. One of the officers frisked J.L. and seized a gun from J.L.’s pocket. J.L., who was then almost 16 years old, was charged under Florida law with carrying a concealed firearm without a license and possessing a firearm while under the age of 18.
Justice Ginsburg, writing for the Court, noted that the officers’ suspicion that J.L. was carrying a gun arose solely from a call made from an unknown location by an unknown caller. 529 U.S. at 270. The Supreme Court recognized that there are situations in which an anonymous tip, suitably corroborated, exhibits “ ‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.’ [Citation omitted.]” 529 U.S. at 270. However, it found that in J.L.’s case, the tip lacked such reliability. 529 U.S. at 273-74.
The J.L. Court observed that the anonymous call provided no predictive information; thus, the officers were left without means to test the informant’s knowledge or credibility. The “unaccountable informant” neither explained how he knew about the gun nor gave a basis for his belief that he had inside information about J.L. 529 U.S. at 271. Florida contended that the tip was rehable because the description of the suspect proved accurate. However, the opinion pointed out that, while such a tip helps officers correctly identify the accused, it does not show that the informant has knowledge of a concealed criminal activity. 529 U.S. at 272.
Other states have distinguished J.L. from situations involving tipsters and alleged drunk drivers. See State v. Eichholtz, 752 N.E. 2d 163, 166-67 (Ind. App. 2001) (informant not anonymous; he identified himself in such manner that he could be held legally responsible if officer’s investigation revealed false report; in addition, informant continued to follow Eichholtz car while staying on line with 911 operator until officer pulled Eichholtz over); Jobe v. Commissioner of Public Safety, 609 N.W.2d 919, 921-22 (Minn. App. 2000) (informant gave his name, the location of his car in relation to the other motorist [Jobe], and a description of Jobe’s car; although State was unable to locate informant, tip sufficiently reliable under totality of circumstances). See also State v. Boyea, 765 A.2d 862, 867 (Vt. 2000), cert. denied 121 S. Ct. 2524 (2001)(“[A]n anonymous report of an erratic or drunk driver on the highway presents a qualitatively different level of danger, and concomitantly greater urgency for prompt action.”); State v. Rutzinski, 241 Wis. 2d 729, 748-49, 623 N.W.2d 516 (2001) (finding that unidentified motorist informant’s tip concerning defendant’s erratic driving contained an indicia of reliability and that investigative traffic stop justified).
Stover also relies on U.S. v. Lopez-Valdez, 102 F. Supp. 2d 728 (W.D. Tex. 2000), to support his contention that J.L. applies here. However, his reliance is misplaced. The Lopez-Valdez court held that, under J.L., without corroboration of predictive information or the independent observation by agents of suspicious activity, an anonymous caller’s information was not sufficiently rehable to justify ihe intrusion of an immigration stop. 102 F. Supp. 2d at 732. Unlike the phone tip here, Lopez-Valdez did not involve an identified caller or a possible drunk driver.
The City correctly notes that here, the tip did not come from an anonymous source. Barnes gave both her name and address to the police dispatcher. She described Stover’s car in detail, while observing and describing Stover’s driving behavior. On the dispatch tape, she described what was occurring and, as the car came back by her house she said, “Listen to this.” As she spoke to the dispatcher, Barnes said the car slowed down in front of her house and the people in the car appeared to look at her. Then, she said they could not see her because she was in the dark. We have found the most favored types of tips are those that are not actually anonymous but occur when a person gives the police a name or identification. Slater, 267 Kan. at 700. Barnes may have been exposed to criminal prosecution if the report had proven to be false. See K.S.A. 21-3818 (falsely reporting a crime).
Officer McGee saw the accurately described car driving toward the caller’s location. He also saw the car’s broken taillight, as described by Barnes. See K.S.A. 8-1706 (tail lamps); K.S.A. 8-1708 (stop lamps).
J.L. is distinguishable. The facts here do not involve an anonymous tip; thus, we need not reach Stover’s contention that J.L. overrules Slater.
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|
Per Curiam:
This is an original contested proceeding in discipline filed by the office of the Disciplinary Administrator against respondent John Lloyd Swarts, III, of Fort Scott, Kansas, an attorney admitted to practice law in Kansas.
This matter was heard by a duly appointed panel of the Kansas Board for Discipline of Attorneys on August 30, 2000, which rendered a comprehensive and factually explicit 26-page report, making specific findings of fact and conclusions of law.
Respondent was charged by the Disciplinary Administrator in seven separate counts: Count 1, State of Kansas v. Billy Joe Gray; Count II, Awbrey Hawpe; Count III, Mark Briggs; Count IV, Dale Leland Gardner, Jr.; CountV, Raul Reyes and juveniles; Count VI, “Board of Discipline”; and Count VII, State v. Weeter.
The Disciplinary Administrator alleged the respondent violated KRPC 1.1 (2000 Kan. Ct. R. Annot. 300) (competent representation), KRPC 3.3 (2000 Kan. Ct. R. Annot. 385) (candor toward tribunal), KRPC 3.4(c) and (e) (2000 Kan. Ct. R. Annot. 389) (fairness), KRPC 3.8 (2000 Kan. Ct. R. Annot. 397) (special responsibilities of a prosecutor), and KRPC 8.4(a), (d), and (g) (2000 Kan. Ct. R. Annot. 420) (misconduct) in Count I; KRPC 8.4(a) in an attempt to violate KRPC 3.3 and 8.4(c) (candor and misconduct), in Count II; KRPC 1.1, KRPC 3.7 (2000 Kan. Ct. R. Annot 395) (lawyer as witness), KRPC 4.2 (2000 Kan. Ct. R. Annot. 400) (communicating with person represented by counsel), and KRPC 8.4(a), (d), (e), and (g) in Count III; KRPC 3.8(c), KRPC 4.3 (2000 Kan. Ct. R. Aamot 401) (dealing with unrepresented person), and KRPC 8.4(d) in Count TV; KRPC 8.4(d) and (g) in Count V; KRPC 3.5(d) (2000 Kan. Ct. R. Annot. 392) (undignified or discourteous conduct degrading to tribunal), and KRPC 8.4(d) and (g) in Count VI; and KRPC 3.5(d), KRPC 8.4(d) and (g), and KRPC 3.8(a) in Count VII.
The respondent stipulated to the facts set forth in the formal complaint as amended by his answer. Respondent also stipulated to violations of KRPC 1.1,3.4(e), and 8.4(a),(d), and (g) in the Gray case (Count I). Respondent presented testimony in his own behalf, the matter was argued by the parties, and the hearing panel found by clear and convincing evidence as follows:
“FINDINGS OF FACT
“1. John L. Swarts, III (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 11994. His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Fort Scott, Kansas. . . .
“2. In 1994, the Respondent was appointed to serve as the Bourbon County Attorney, replacing Michael Coffman, who had resigned from office to return to the private practice of law. From 1994, through the present time, the Respondent has remained as the Bourbon County Attorney.
“Gray Case
“3. On July 21, 1994, the Fort Scott police were called to Bobby Joe Gray’s apartment on two separate occasions within a relatively brief period of time. Based upon the information obtained, a search warrant was issued and executed upon Mr. Gray’s apartment. Items seized from various locations throughout the apartment included a small amount of marijuana and seeds, numerous items of drug paraphernalia, including syringes and spoons, and items indicative of drug trafficking.
“4. Kimberly Tindel, Mr. Gray’s live-in girlfriend, and Carla Ragan, a friend and neighbor of Mr. Gray, were charged with drug offenses. Later, Mr. Gray was also charged with drug offenses.
“5. Generous plea agreements were made with Ms. Tindel and Ms. Ragan in exchange for their testimony against Mr. Gray. At trial, the Respondent relied heavily on die testimony of Ms. Ragan and the theory of constructive possession by Mr. Gray. Ms. Tindel’s testimony was favorable to Mr. Gray. Suffice it to say, the evidence against Mr. Gray was not overwhelming.
“6. The jury convicted Mr. Gray, and he appealed his convictions to the Kansas Court of Appeals. The Kansas Court of Appeals reversed and remanded the case for a new trial finding that the Respondent had engaged in prejudicial prosecutorial misconduct. State v. Gray, 25 Kan. App. 2d 83, 88, 958 P.2d 37 (1998).
“7. The prosecutorial misconduct consisted of a comment made by the Respondent during his cross-examination of Mr. Gray regarding evidence of syringe use, improper cross-examination of Mr. Gray, and improper comments made during die closing argument.
a. Cross-Examination of Defendant. The following exchange occurred on the diird day of Mr. Gray s jury trial, between the Respondent and Mr. Gray. The Kansas Court of Appeals found that the Respondent engaged in prosecutorial misconduct, based upon this exchange:
‘Q. Do you recall ever seeing that syringe before?
‘A. No, I have not.
‘Q. All right. And you don’t use those items.
‘A. I have in the past, yes, I have — I ain’t saying I haven’t — but I quit.
‘Q. When did you quit?
‘A. I quit like a month — probably a month and a half prior to any of this happening.
‘Q. Yet when you were in here — let me see your arms. Would you show me your arms.
‘A. See anything in diere?
‘Q. Sure saw a lot more on the day we arrested you.’
The last statement made by the Respondent was made out of the hearing of the trial judge. The Respondent had his back to the judge and counsel for Mr. Gray. Counsel for Mr. Gray made a timely objection. The objection was sustained. However, the jury was not admonished to disregard the comment until immediately preceding their deliberations. The Kansas Court of Appeals noted that ‘the remark is so prejudicial as to be classified as incurable by the later jury admonition, particularly one which came at the veiy close of the trial, immediately before die jury retired for deliberation.’ State v. Gray, 25 Kan. App. 2d at 87.
b. Preliminary Hearing Evidence. During his cross-examination of Mr. Gray, the Respondent questioned Mr. Gray regarding evidence presented at the preliminary hearing. However, die preliminary hearing evidence was not admitted into evidence at the trial.
c. The Respondent’s Closing Argument. The Court of Appeals found that four areas of comment hy the Respondent in his closing argument went ‘beyond the scope of fair comment on the evidence, even considering the wide latitude given a prosecutor in closing statement.’ Id. at 88. Specifically, the Court found that the Respondent improperly (1) gave his personal belief regarding Mr. Gray’s guilt, (2) commented that he found drug money in other irrelevant cases, (3) offered evidence from the preliminary hearing regarding Mr. Gray’s guilt even though the evidence had not been admitted into evidence, and (4) implied that Mr. Gray was infected with HIV.
(1) The Respondent made improper comments regarding his personal beliefs. In arguing his case to the jury, the Respondent said: ‘I wanted what I thought was the kingpin, and I let a couple of other small fry all off the hook.’ Later, the Respondent said: ‘I traded for their testimony. I let them off the hook because I wanted the kingpin — what I thought was the kingpin. So I got it.’ Finally, die Respondent stated:
‘He is not the world’s kingpin. He is not die Medellin Cartel. This is just a local dealer. I want him off the street.
7 use common sense and experience. I’ve been charging people and looking at police reports a long time.
‘And I’ve been walking around widi my eyes open for 53 years. I don’t just throw things out willy-nilly. I charge people widi crimes.’
(2) The Respondent made improper references to ‘drug money’ he had found in odier cases. During his closing argument, counsel for Mr. Gray used die lack of money found in Mr. Gray’s residence to support the theoiy that his client was not selling drugs. In response to die comments made by Mr. Gray’s counsel, die Respondent said:
7 don’t know where the money went. I’d have been glad to get diere early enough. I’ve gotten there early enough on other occasions, and we’ve gotten from hundreds to thousands. But in this case, we didn’t find any money.
‘But if I’m leaving, I don’t have time to grab the weed, but I’m going to make sure I got time to grab the money, money I’ve got to spend. I don’t know where the money went. Can’t show you.’
(3) The Respondent made improper references to evidence not admitted in the case. During his closing argument, the Respondent made several references and comments regarding the evidence presented at the preliminaiy hearing in diis case. The evidence used in the preliminary hearing was not admitted into evidence at the trial.
(4) The Respondent made improper references to ‘HIV.’ The Respondent provided the jury widi a commentary on the syringes found in Mr. Gray’s apartment, indicating that the syringes may be infected with HIV, and therefore, implying that Mr. Gray may be infected with HIV. There was no evidence introduced in the trial regarding ‘HIV’ or testing of die needles in question. Specifically, die Respondent stated:
7 wouldn’t necessarily reach in die trash can because HIV is a killer. If I stabbed myself with one of those needles, I’d cut my finger because you can’t get rid of it any other way.’
“Manufactured Evidence Case
“8. In 1994, Fort Scott Sgt. Awbrey Hawpe investigated an allegation that James Lee Scott masturbated and ejaculated into a handkerchief in front of an employee. The handkerchief was collected as evidence and placed into a brown paper sack.
“9. The Respondent charged Mr. Scott widi lewd and lascivious behavior and criminal restraint. Counsel for die defendant and the Respondent worked out a plea agreement, and on October 24,1994, die matter was scheduled for a change of plea and sentencing hearing.
‘TO. Some time after the commission of the crime, but before the change of plea hearing, the brown paper sack containing the handkerchief was lost. '
“11. After being informed that the evidence was lost and shortly before the change of plea hearing on October 24, 1994, the Respondent located a brown paper sack and placed his personal handkerchief into the sack. The Respondent asked Sgt. Hawpe to cany the sack containing the Respondent’s handkerchief into the courtroom as though it was the missing evidence in the case. Additionally, the Respondent asked Sgt. Hawpe not to Volunteer anything,’ implying that Sgt. Hawpe should mislead die defendant about the misplaced handkerchief.
“12. Sgt. Hawpe became angry, told the Respondent that he was not going to tell a he, and refused to take part in the Respondent’s charade. Because Sgt. Hawpe would not cany the sack into the courtroom, the Respondent carried the sack and placed it on counsel table. The sack remained on counsel table throughout the change of plea and sentencing hearing.
“13. In his response to the initial complaint, the Respondent explained that he placed his handkerchief in the brown paper sack and treated the sack as if it were the missing evidence ‘to heap added embarrassment on the defendant.’ Additionally, the Respondent testified at the hearing on this matter, that he placed his handkerchief in the brown paper sack because he wanted Mr. Scott to believe that the evidence was not missing and could be used if Mr. Scott decided to back out of the plea agreement.
“14. The judge and Mr. Scott were never informed that the handkerchief inside the sack was the Respondent’s personal handkerchief and not the evidence seized in the case.
“15. Although the Respondent acknowledges that embarrassing Mr. Scott was improper, the Respondent now asserts that, because he could have used the handkerchief as — in his words ‘demonstrative evidence,’ he did not engage in misconduct.
“Briggs Case
“16. On May 9, 1995, the Respondent was the victim of a crime. Mark Briggs stole his trailer and its contents. On May 10, 1995, the Respondent’s assistant filed a complaint charging Mr. Briggs with theft. The Respondent was endorsed as a witness on the complaint.
“17. The Respondent went to the home of Mr. Briggs’ parents and informed them that if Mr. Briggs would return his property, the Respondent would reduce the charges pending against Mr. Briggs.
“18. On August 29, 1995, Mr. Briggs was arrested for the crime. Mr. Briggs’ first appearance was August 30, 1995. The Respondent’s assistant appeared in behalf of the state. The Respondent was also present during the hearing.
“19. On August 31, 1995, Charles Gentry was appointed to represent Mr. Briggs. On September 5, 1995, Mr. Briggs appeared with counsel for a bond review hearing. Following the hearing, outside the presence of Mr. Gentry, Mr. Briggs asked the Respondent if all he wanted was his property back. The Re spondent restated the offer that he had made to Mr. Briggs’ parents. Mr. Briggs asked the Respondent to come see him in jail. The Respondent and Mr. Briggs scheduled a meeting at 12:30 p.m. in the jail.
“20. Opposing counsel, Mr. Gentry, learned of the Respondent’s plans to have ex parte contact with his client. Prior to the meeting, Mr. Gentry stopped by die Respondent’s office and canceled the meeting.
“21. At about this same time, the Respondent was seeking to have a special prosecutor appointed to prosecute this case. Daniel F. Meara was appointed and served in diat capacity.
“22. The brief conversation between the Respondent and Mr. Briggs after die bond review hearing, including the incriminating statement, was introduced as evidence in the preliminary hearing.
“23. On three separate occasions the defendant initiated contact with the Respondent. On November 1,1995, Mr. Briggs requested that the Respondent meet with him in the jail. Again on November 3,1995, Mr. Briggs sent a request to die Respondent asking him to visit him in the jail. Finally, on November 8,1995, Mr. Briggs notified the Respondent that he had information in a murder case and Mr. Briggs again asked the Respondent to visit him in jail.
“24. On November 8, 1995, the Respondent went to die jail and visited Mr. Briggs. Prior to meeting with Mr. Briggs, die Respondent attempted to contact Mr. Gentry. Because Mr. Gentry was not at home or at the office, and because the Respondent did not want to stay at the office until after 10:00 p.m., the Respondent went to see Mr. Briggs without the consent of opposing counsel. During diat meeting, Mr. Briggs made additional incriminating statements regarding the theft of the Respondent’s personal property.
“25. The trial court later suppressed the statements made by Mr. Briggs on September 5, 1995, and November 8, 1995.
“Gardner Case
“26. On October 2, 1995, the Respondent charged Dale Leland Gardner, Jr. with aiding and abetting first degree murder, possession of narcotics, and conspiracy to possess narcotics.
“27. On October 6, 1995, Mr. Gardner was booked into jail. One hour before the first appearance, the Respondent went to the jail and questioned Mr. Gardner. Prior to questioning Mr. Gardner, the Respondent did not advise Mr. Gardner of his right pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1601, 16 L. Ed. 2d 694 (1966). During that conversation, Mr. Gardner made incriminating statements to the Respondent. At die first appearance hearing, counsel was appointed for Mr. Gardner.
“Reyes Case
“28. On June 5, 1998, State v. Raul Reyes came on for a bond hearing. The Respondent appeared at that time, and argued against a reduced bond, reasoning that it would be easy for the defendant to travel to Mexico and blend in with the populace. The Respondent based his comments on the defendant’s name and appearance. The defendant was a United States citizen and a military veteran.
‘‘29. The comments by the Respondent drew an objection by counsel for defendant. Additionally, a Hispanic American Corrections Officer voiced his objection to the improper comments as well.
“Slavery Comments
“30. On May 4, 1998, following a hearing on a ‘child in need of care’ case, the Respondent met with various participants of tire hearing, including two social workers from tire Kansas State Department of Social and Rehabilitation Services (hereinafter ‘SRS’), an African American teenage girl, her mother, and her aunt. During this meeting, the Respondent positioned himself a few feet from the teenager and shouted, ‘Do you think slavery is over? Damn it young lady answer me, do you think slavery is over? I’m here to tell you it’s not, your mother owns you until you are 18.’
“31. At die hearing on this matter, the Respondent denied diat making such comments to an African American person is offensive. He denied diat it was a racist statement, alleging that he did not notice the race of the child to whom he was talking and diat die comment is a correct statement of the law. He maintained that die decisions of the United States Supreme Court support the view that children are chattel owned by their parents.
“Advice to Chain Child to Bed
“32. On November 9,1998, die Respondent, following a juvenile court hearing, advised the father of a juvenile to chain his son to the bed to allow the family to get some rest and to prevent the child from sneaking out of die house at night. The father followed the Respondent’s advice and, for three nights, chained his son to the bed with a chain and padlock. As a direct result, die child was removed from die care of die fadier. During the hearing on this matter die Respondent maintained that his advice was fully justified. As justification he testified diat die child died after being placed in the custody of SRS. The Respondent stated diat the child did not die ‘on my watch.’
“Suicide Comments
“33. On April 23, 1998, a fourteen year old was placed in foster care. Social workers from die area office of the SRS contacted the Respondent and asked him to file a ‘child in need of care’ case. The Respondent refused to file die case and refused to examine additional information presented by the SRS workers. After the Respondent was informed diat die child was suicidal, die Respondent stated diat he hoped diat the child would commit suicide because eveiyone would be better off. The Respondent also told the social workers that diey could bring die child to Ills office and he would show die child how to commit suicide.
“34. In his response to die initial complaint, die Respondent defended his statement to the SRS workers by stating, ‘I do not have a great deal of respect for [SRS workers] and take advantage of their stupidity as often as possible.’ The Respondent reiterated his position at the hearing on this matter.
"Public Corporal Punishment Comments
“35. The Respondent has taken a public stance in favor of corporal punishment of children. In furtherance of his position, the Respondent maintains a large wooden paddle painted red and emblazoned with the letters ‘Board of Education’ in his office and has made arrangements for parents to bring their children to the courthouse after business hours, for the administration of public paddlings. He has done this in lieu of bringing formal juvenile proceedings or as an adjunct to such proceedings. The paddlings have been witnessed by the Respondent, juvenile intake workers, and law enforcement officers.
“36. The Respondent’s personal opinion regarding paddling children found its way into the newspapers local to the Bourbon County area. The Respondent is quick to point out that the local SRS office is of the opinion that paddling children with a wooden paddle is child abuse. The Respondent, on the other hand, is of tlie opinion diat such paddlings are not child abuse. His justification for having the paddlings administered in the county courthouse in the presence of public officials is to avoid die tiireat of SRS accusing the parents of die children of child abuse.
“Weeter Case
“37. On August 30, 1999, John Weeter was charged with two counts of conspiracy to commit murder in the first degree, case number 99CR432. Thereafter, on September 7, 1999, the Respondent amended die charges to include four counts of conspiracy to commit murder in the first degree. Then, on September 28, 1999, the Respondent filed a Second Amended Complaint, and charged Mr. Weeter with one count of attempted murder in the first degree and one count of conspiracy to commit murder in die first degree. Mr. Weeter was represented by Daniel D. Creitz.
“38. The case proceeded to preliminary hearing on September 23, 1999, and October 15, 1999. At the conclusion of the hearing, die court bound Mr. Weeter over on the charges of conspiracy to commit first degree murder and attempted aggravated assault (a lesser included offense of attempted murder in the first degree). The court found that there was insufficient evidence to support a finding of probable cause on the charge of attempted murder in the first degree.
“39. At the conclusion of the preliminary hearing, as the judge was leaving the courtroom, Mr. Creitz approached the Respondent to request a copy of an audiotape material to the case. Ignoring the request, the Respondent told Mr. Creitz to ‘fuck off.’ Additionally, the Respondent threatened Mr. Creitz, stating he did not want to be ‘fucking messing’ with the Respondent. The expletives used by the Respondent were heard by the Honorable Patricia Miklos, Judge Pro Tern, court services officers, Mr. Weeter, Mr. Weeter’s modier, Mr. Gentry (counsel for a co-defendant), and die court reporter, Darcie Cruz. The Respondent, in a fit of pique, vowed to refile die case.
“40. Within a few hours of the conclusion of die preliminary hearing on October 15, 1999, and without die benefit of any new evidence regarding die case, the Respondent refiled the same charge of attempted murder in the first degree, case number 99CR485.
“41. The Respondent subsequendy dismissed case number 99CR485 on January 24, 2000. The Respondent explains diat die case was dismissed because he failed to subpoena witnesses necessary to establish the charges. However, a week before the case was dismissed, counsel for Mr. Weeter filed a motion to dismiss. Additionally, the preliminary hearing was scheduled before the same judge who had heard it the first time and had refused to find probable cause to bind the defendant over for trial.
“42. At die hearing on his matter, die Respondent justified his actions of refiling die attempted murder in the first degree charge on the theory that, because the facts diat gave rise to die conspiracy to commit murder in die first degree charge occurred on one date and die facts that gave rise to the attempted murder in the first degree charge on another, refiling die same charges without new evidence was appropriate.
“CONCLUSIONS OF LAW
“Based upon the above findings of fact, the Hearing Panel makes the following conclusions of law:
“1. Gray Case. Regarding the Gray case, the Respondent stipulated that he violated KRPC 1.1, KRPC 3.4(e), KRPC 8.4(a), KRPC 8.4(d), and KRPC 8.4(g). The Hearing Panel accepts the Respondent’s stipulation, and concludes that the Respondent violated KRPC 1.1, KRPC 3.4(e), KRPC 8.4(a), KRPC 8.4(d), and KRPC 8.4(g) during the trial of die Gray case.
a. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ Id. In die Gray case, die Respondent failed to competently represent the state of Kansas when he commented on facts not in evidence, when he made comments as though he were testifying in the case, and when he made other improper comments during closing argument.
b. KRPC 3.4(e) provides as follows:
‘A lawyer shall not ... in trial, allude to any matter that die lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, die credibility of a witness, die culpability of a civil litigant or the guilt or innocence of an accused.’
In this case, the Respondent violated this rule by (1) alluding to a matter that was not supported by admissible evidence, (2) asserting personal knowledge of facts in issue, and (3) stating a personal opinion as to die guilt of the accused. Accordingly, die Hearing Panel concludes diat the Respondent violated KRPC 3.4(e).
c. The Respondent also violated KRPC 8.4. Specifically, the Hearing Panel concludes that the Respondent violated KRPC 8.4(a), KRPC 8.4(d), and KRPC 8.4(g). The Respondent violated KRPC 8.4(a) by violating KRPC 1.1 and KRPC 3.4(e).
d. The Respondent’s misconduct during the Gray trial resulted in a reversal and a new trial. Certainly when prosecutorial misconduct rises to the level of reversible error, justice has been prejudiced. As a result, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
e. Interjecting his personal testimony that Mr. Gray had syringe marks on his arms the day he was arrested, giving his personal belief regarding Mr. Gray’s guilt, commenting that he found drug money in other irrelevant cases, offering evidence from the preliminary hearing regarding Mr. Gray’s guilt even though the evidence had not been admitted into evidence, and implying that Mr. Gray was infected with HIV, adversely reflects on the Respondent’s ability to practice law. Indeed, the explanations offered by the Respondent during the hearing on this matter do nothing to inspire the Hearing Panel to conclude that the Respondent appreciates the full impact that his conduct had on the administration of justice. Therefore, die Hearing Panel concludes that the Respondent violated KRPC 8.4(g).
f. The Respondent was also charged with violating KRPC 3.3, KRPC 3.4(c), and KRPC 3.8. The Hearing Panel concludes that clear and convincing evidence does not support a finding that the Respondent violated KRPC 3.3, KRPC 3.4(c), and KRPC 3.8. Accordingly, those allegations of the Formal Complaint are dismissed.
“2. Manufactured Evidence Case. With regard to the misuse of die Respondent’s handkerchief, the Deputy Disciplinary Administrator alleged diat the Respondent violated KRPC 8.4(a) when he attempted to violate KRPC 3.3 and KRPC 8.4(c). In addition to the violations alleged in die Formal Complaint, die Hearing Panel has considered the applicability of KRPC 3.4(b).
a. It is appropriate to consider violations not included in the Formal Complaint under certain circumstances. The law in this regard was dioroughly examined in State v. Caenen, 235 Kan. 451, 681 P.2d 639 (1984), as follows:
‘Supreme Court Rule 211(b) (232 Kan. clxvi), requires die formal complaint in a disciplinary proceeding to be sufficiently clear and specific to inform the respondent of the alleged misconduct.
‘The seminal decision regarding die applicability of the due process clause to lawyer disciplinary proceedings is found in In re Buffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117, reh. denied 391 U.S. 961, 88 S.Ct. 1833, 20 L.Ed.2d 874 (1968). There die United States Supreme Court held diat a lawyer charged widi misconduct in lawyer disciplinary proceedings is entitled to procedural due process, and diat due process includes fair notice of die charges sufficient to inform and provide a meaningful opportunity for explanation and defense.
‘Decisions subsequent to Buffalo have refined die concept of due process as it applies to lawyer disciplinary hearings, and suggest diat the notice to be provided be more in the nature of diat provided in civil cases. The weight of audiority appears to be that, unlike due process provided in criminal actions, there are no stringent or technical requirements in setting forth allegations or descriptions of alleged offenses. . . . Due process requires only that the charges must be sufficiently clear and specific to inform the attorney of the misconduct charged, but the state is not required to plead specific rules, since it is the factual allegations against which die attorney must defend. . . . However, if specific rules are pled, the state is diereafter limited to such specific offenses. . . .
‘Subsequent to the Buffalo decision, the due process requirements in lawyer disciplinary proceedings have been given exhaustive treatment by this court. In State v. Turner, 217 Kan. 574, 538 P.2d 966 (1975), 87 A.L.R.3d 337, die court summarized prior Kansas and federal precedent on die question, including Buffalo, and held in accordance with established precedent that the state need not set forth in its complaint die specific disciplinary rules allegedly violated . . ., nor is it required to plead specific allegations of misconduct.... What is required was simply stated therein:
“We must conclude diat where the facts in connection widi the charge are clearly set out in die complaint a respondent is put on notice as to what ethical violations may arise therefrom. . . .
“It is not incumbent on the board to notify the respondent of charges of specific acts of miscpnduct as long as proper notice is given of the basic factual situation out of which die charges might result.’ ”
235 Kan. at 458-59 (citations omitted). Thus, only when the Formal Complaint alleges facts diat would support findings of violations of die amendments, will considering additional violations be allowed. In diis case, die Formal Complaint contains sufficient facts to support a finding that the Respondent attempted to violate KRPC 3.4(b). Thus, in the opinion of the Hearing Panel, the additional violation of KRPC 3.4(b) should appropriately be considered.
c. In this case, the Respondent attempted to falsify evidence, as prohibited by KRPC 3.4(b). Aldiough die Respondent defends his statements and actions regarding die handkerchief as an appropriate use of ‘demonstrative evidence,’ the Hearing Panel notes that he brought diis material to a plea and sentencing hearing. The evidence supporting the charges of the amended complaint to which the defendant was expected to plead guilty have little to do with this bit of manufactured evidence. If the Respondent is sincere in his belief that die use of his personal handkerchief at this proceeding is an appropriate use of ‘demonstrative evidence’ then his fitness to practice law is seriously called into question. A remedial course in the rules of evidence would appear in order. The Respondent also testified that the reason he placed his own handkerchief into die paper sack was to embarrass Mr. Scott and to lead Mr. Scott to believe diat he had the original handkerchief in court in case Mr. Scott failed to enter his plea pursuant to the plea agreement. This latter explanation for die Respondent’s behavior is far more credible given the Respondent’s demeanor throughout the proceedings. The Respondent testified:
‘My intent was to embarrass the defendant because his wife was there and he was denying it in front of his wife. The young pregnant girl was right there. He had to — that was part of the punishment order that he had to apologize to tire girl. His wife was there. So I didn’t really need to bring the bag in there.’
Because the Respondent intended for Mr. Scott to believe that the Respondent’s handkerchief was actually die handkerchief diat had been collected at the scene of the crime, the Respondent attempted to falsify evidence. Sgt. Hawpe recognized clearly what the Respondent intended to do and refused to participate in the deception. The chief law enforcement officer of the county should have die same ethical compass.
d. The Respondent engaged in ‘conduct involving dishonesty, fraud, deceit or misrepresentation,’ when he placed his handkerchief into die paper sack and acted as though diat was the handkerchief collected as evidence in the case. KRPC 8.4(c). Through his actions, radier than his words, die Respondent purported diat what he had before him was the evidence in die case. Although following the plea and sentencing hearing, the Respondent explained to counsel for Mr. Scott that the Respondent’s personal handkerchief was in the paper sack, there was no evidence presented as to whedier Mr. Scott or the judge were [led] to believe that die sack contained evidence. However, the Respondent’s intent is clear from the record. The Respondent testified that he wanted to ensure that if Mr. Scott decided to change his mind, and not enter his plea pursuant to the plea agreement, that Mr. Scott would believe diat the Respondent had the evidence of die crime. Respondent testified:
‘But I could have used it. I mean, if the lieutenant had just carried it in — well, even ifas long as it’s there, I can still use it with the lieutenant if the man at the last second had changed his mind and not wanted to plead.’
The Respondent misled Mr. Scott to ensure a guilty plea. The Respondent was engaging in ‘dishonesty, fraud, deceit or misrepresentation,’ in violation of KRPC 8.4(c). Accordingly, the Hearing Panel concludes diat die Respondent violated KRPC 8.4(c).
e. KRPC 8.4(a) provides that it is professional misconduct to: ‘[v]iolate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so tiirough die acts of anodier.’ Because die Respondent attempted to violate KRPC 3.4(b), and because the Respondent did violate KRPC 8.4(c), the Hearing Panel concludes diat the Respondent violated KRPC 8.4(a).
“f. The Deputy Disciplinaiy Administrator alleged in die Formal Complaint that the Respondent also attempted to violate KRPC 3.3. The evidence does not support a finding that the Respondent attempted to violate KRPC 3.3. Therefore, the allegation in the Formal Complaint that the Respondent attempted to violate KRPC 3.3, is dismissed.
“3. Briggs Case. In the Briggs case, the Respondent was charged with having violated KRPC 1.1, KRPC 3.7, KRPC 4.2, KRPC 8.4(a), KRPC 8.4(d), KRPC 8.4(e), and KRPC 8.4(g).
a. KRPC 8.4 provides, in pertinent part, as follows:
‘It is professional misconduct for a lawyer to:
‘(d) engage in conduct that is prejudicial to the administration of justice;
‘(e) state or imply an ability to influence improperly a government agency or official;
‘(g) engage in any other conduct that adversely reflects on die lawyer s fitness to practice law.
In this regard, the Respondent violated KRPC 8.4(d), KRPC [8.4](e), and KRPC 8.4(g).
b. The Respondent engaged in conduct that was ‘prejudicial to die administration of justice,’ when he contacted Mr. Briggs without the presence or permission of Mr. Gentry. The first contact diat die Respondent had with Mr. Briggs was admitted into evidence at the preliminary hearing. Subsequent to the second contact that the Respondent had with Mr. Briggs, Mr. Gentry had to prepare and file a motion to suppress the statements made to die Respondent. As a result, the administration of justice was prejudiced. Accordingly, die Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
c. By stating to Mr. Briggs that die plea offer was still open, die Respondent (not acting in his official capacity as County Attorney) stated an ability to influence a government official, namely Mr. Meara, the special prosecutor. Because the Respondent acted as diough he had the authority of Mr. Meara to settle a pending criminal case, the Hearing Panel concludes that die Respondent violated KRPC 8.4(e).
d. Contacting a criminal defendant, without die presence or permission of defense counsel reflects adversely on the Respondent’s ability to practice law. Respondent explained to die Panel diat he did not contact defense counsel because of an ongoing problem widi die particular attorney appointed to represent die defendant. This explanation seem[ed] counter intuitive to the Hearing Panel. If die Respondent had problems with defense counsel then ex parte communications with the client of that attorney would only exacerbate the conflict between die Respondent and defense counsel. Accordingly, the Hearing Panel concludes that die Respondent violated KRPC 8.4(g).
e. The Deputy Disciplinary Administrator alleged that the Respondent violated KRPC 4.2. KRPC 4.2 provides:
In representing a client, a lawyer shall not communicate about the subject of the representation with a party die lawyer knows to be represented by another lawyer in the matter, unless the lawyer has die consent of the other lawyer or is authorized by law to do so. [Emphasis added.]’
In this case, because the Respondent was not ‘representing a client,’ the Respondent did not violate KRPC 4.2. As a result, the allegation that the Respondent violated KRPC 4.2 is dismissed. See also State v. Sperry, 267 Kan. 287, 978 P.2d 933 (1999). The Hearing Panel notes that die Respondent was looking after his own interests radier than the interests of die state of Kansas, and attempted to use the color of his office as county attorney to secure die return of his personal property. While he appears to have recognized die logistical problems of acting as trial counsel and witness in the same action, the ethical considerations of his situation appear to have completely escaped die Respondent. His conduct diroughout die ex parte contacts in die Briggs case indicates a clear intent to use the power of his office for his personal benefit or to, take advantage of a lay person in obtaining admissions against interest. In light of the suppression of die Briggs statements in the criminal case, the Respondent’s conduct was ethically questionable and strategically ineffective.
f. The Hearing Panel also concludes diat clear and convincing evidence was not presented to support findings that the Respondent violated KRPC 1.1, KRPC 3.7, and KRPC 8.4(a). Accordingly, those allegations contained in the Formal Complaint are hereby dismissed.
“4. Gardner Case. The Deputy Disciplinary Administrator alleged in the Formal Complaint, regarding the Gardner case, diat the Respondent violated KRPC 3.8(c), KRPC 4.3, and KRPC 8.4(d).
a. KRPC 3.8(c) provides that a ‘prosecutor in a criminal case shall . . . not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as die right to a preliminary hearing.’ In tiiis case, the Respondent contacted an unrepresented, charged defendant and asked him to waive an important pretrial right — die right to remain silent. Based upon diese facts, die Hearing Panel concludes diat the Respondent violated KRPC 3.8(c).
b. Contacting an unrepresented, charged defendant one hour prior to die time die defendant would have counsel appointed to represent him, also prejudiced justice. As a result of the contact, Mr. Gardner’s counsel found it necessary to file a motion to suppress. The statements made by Mr. Gardner were suppressed. Accordingly, the Hearing Panel concludes diat the Respondent violated KRPC 8.4(d).
c. The Deputy Disciplinary Administrator also alleged that die Respondent violated KRPC 4.3. KRPC 4.3 provides:
‘In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When die lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.’
The Deputy Disciplinary Administrator failed to present clear and convincing evidence that the Respondent implied diat he was disinterested or that Gardner misunderstood the Respondent’s role in die matter. As such, die Hearing Panel hereby dismisses the allegation that the Respondent violated KRPC 4.3.
“5. Reyes Case.
a. Requiring a criminal defendant to post a bond serves two purposes. First, die bond must be ‘sufficient to assure die appearance’ of the defendant, and second, the bond must be sufficient ‘to assure die public safety.’ K.S.A. 22-2802(1). Additionally, die magistrate may order that conditions be placed on a bond. The court may consider die following factors when determining which conditions to place on a bond:
‘the nature and circumstances of the crime charged; die weight of the evidence against die defendant; the defendant’s family ties, employment, financial resources, character, mental condition, lengdi of residence in die community, record of convictions, record of appearance or failure to appear at court proceedings or of flight to avoid prosecution; die likelihood or propensity of the defendant to commit crimes while on release, including whedier die defendant will be likely to threaten, harass or cause injury to the victim of the crime or any witnesses thereto; and whedier the defendant is on probation or parole from a previous offense at die time of the alleged commission of the subsequent offense.’ K.S.A. 22-2802(5).
In the Reyes case, the Respondent recommended to the court that the bond not be lowered because the defendant was Hispanic, could easily flee to Mexico, and once there, blend in with die population. The Respondent testified that:
‘And die reasoning that I used those arguments that here was a person who could speak Spanish, he could disappear into die Spanish speaking country of Mexico. We don’t have a good relationship. I mean, the media says we don’t have a good relationship as far as getting people out to extradite for crimes committed in our country.’
The Respondent argues that this comment was appropriate because it was evidence diat Mr. Reyes would absent himself from die court proceedings. However, die Respondent had no evidence diat Mr. Reyes was a flight risk. The only evidence diat die Respondent offered was based on Mr. Reyes’ edmicity.
b. Arguing that a criminal defendant’s ethnicity is evidence of flight is prejudicial to die administration of justice. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
c. Additionally, the comments made by the Respondent and his continued inability to see any error in those statements reflects adversely on his ability to practice law. Indeed the Respondent rationalized his position by informing die Panel diat if the defendant were of Asian descent he would have argued for a higher bond on die basis that die defendant could flee to ‘Chinatown’ and never be found. These statements shock the Hearing Panel. They do not ameliorate the inference of racism; instead the Respondent’s justification demonstrates that he holds an equally prejudicial view towards all defendants of a differing ethnic background. No public official entrusted widi the privilege of representing the great ‘free state’ of Kansas should ever use the ethnicity of a criminal defendant as the basis of a legal argument. To do so undermines die very fundamental tenants upon which diis state was founded. The Respondent needs to be reminded that the symbol of justice traditionally wears a blindfold and that the first duty of a prosecuting attorney is to see that justice is done. The Hearing Panel thus concludes that the Respondent violated KRPC 8.4(g).
“6. Slavery Comments.
a. Positioning himself a few feet from an African American teenage girl and shouting, ‘Do you think slavery is over? Damn it young lady answer me, do you think slavery is over? I’m here to tell you it’s not, your mother owns you until you are 18,’ adversely reflects on the Respondent’s fitness to practice law. To justify his view the Respondent informed the Hearing Panel that according to his interpretation of the case law the U. S. Supreme Court holds the view that children are ‘not mere chattel’ but are ‘owned’ by their parents. The authority cited by the Respondent does not support this view. During the hearing the Respondent elaborated his opinion during the following exchange:
‘MR. RAMIREZ: I’ve got to ask, did it ever occur to you that making a reference to slavery to an African American might be offensive?
‘MR. SWARTS: Well, his parents — the girl’s parents were right there. They didn’t seem to take offense. And I used that same language with a white kid, a brown kid, a rich kid—
‘MR. RAMIREZ: So it never occurred to you that that might be offensive?
‘MR. SWARTS: No.
‘MR. RAMIREZ: And as a public official, a county attorney, the reference to slavery — making a reference to slavery to an African American teenager, you did not view that as being offensive?
‘MR. SWARTS: I’ve used the same comment regardless of race.
‘MR. RAMIREZ: That answers my question.
Accordingly, the Hearing Panel concludes that the Respondent violat[ed] KRPC 8.4(g).
b. Clear and convincing evidence was not presented to establish that this also amounts to a violation of KRPC 8.4(d). As such, the allegation that the Respondent violated KRPC 8.4(d) in this regard is dismissed.
“7. Advice to Chain Child to Bed.
a. Advising a father to chain his son to the bed, adversely reflects on the Respondent’s fitness to practice law. The Respondent presented his testimony as to the advice that he gave a tearful parent of a disturbed child:
‘Cuff him to his bed so you can get some sleep. You shouldn’t have to lose your job.’ I said, ‘Go to Walmart. Buy a chain and a padlock. Keep the key with you. The house starts to bum, run in, get him out, but he won’t crawl out the window if he’s got the bed frame attached. The mattress can go out, the pillows can go out, but the frame won’t come out the window. So he won’t be out at 3:00 in the morning breaking into people’s stuff or doing anything else.’
The child’s parents apparently took the Respondent’s advice, which ultimately [led] to the child being placed in SRS custody. The Respondent presented evidence that the child was placed in “Parkview.” The records of the case indicate that tragically the child died while in the custody of the state of Kansas. The Respondent’s observation to the Panel was:
‘So, I may have given him some tough advice, folks, but, Your Honors, on my watch that child did not die. In state custody we lost another kid. And I just— I don’t think I did wrong.’ [Emphasis added.]
The Hearing Panel concludes diat die Respondent ‘did wrong’ and violated KRPC 8.4(g), by providing such advice.
b. The Deputy Disciplinary Administrator alleged diat this conduct also violated KRPC 8.4(d). Because the Hearing Panel finds diat clear and convincing evidence was not presented to support this conclusion, die allegation diat die Respondent violated KRPC 8.4(d) is accordingly dismissed.
“8. Suicide Comments.
a. The Respondent’s flippant comments and attitude exhibited to die SRS workers adversely reflects on his fitness to practice law. Therefore, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g).
b. The Hearing Panel concludes that the record is lacking clear and convincing evidence diat die comments prejudiced die administration of justice. Therefore, die allegation diat the Respondent violated KRPC 8.4(d) in this regard is dismissed.
“9. Public Corporal Punishment Comments.
a. The Respondent’s personal opinion regarding paddling children found its way into the newspapers local to the Bourbon County area. Certainly, attorneys have the right to express their personal opinions on a variety of subjects. However, die Respondent has not confined his comments to his personal life. The Respondent is quick to point out that die local SRS office is of die opinion diat paddling is child abuse. The Respondent, on die other hand, is of die opinion that paddling is not child abuse. By condoning and encouraging the public paddling of minor children in his office, by advertising that the paddle is available for use by parents at the courthouse, by supervising the paddlings, by providing the instrument of die paddlings as a ornament on the office wall of the county attorney, and by publicly condemning the opinion of SRS under color of his office as county prosecutor, the Respondent turned a personal belief into a public practice.
b. The Respondent’s comments regarding public corporal punishment and die maintenance of the ‘Board of Education’ in his office has created an atmosphere in Bourbon County, where the parents do not know whether paddling their children is allowed or prohibited by the local authorities. This uncertainty rises to die level of being prejudicial to die administration of justice. Additionally, the comments made by die Respondent adversely reflect on his fitness to practice law. As a result, die Hearing Panel concludes that die Respondent violated KRPC 8.4(d) and 8.4(g).
c. KRPC 3.5(d) provides diat a lawyer shall not ‘engage in undignified or discourteous conduct degrading to a tribunal.’ In this regard, clear and convincing evidence was not presented that die public corporal punishment comments and activity amount to ‘undignified or discourteous conduct diat is degrading to a tribunal.’ Therefore, the Hearing Panel dismisses die allegation diat the Respondent violated KRPC 3.5(d) in relation to die public corporal punishment comments and activity.
“10. Weeter Case. In die Formal Complaint, the Deputy Disciplinary Administrator alleged diat die Respondent violated KRPC 3.5(d), KRPC 3.8(a), KRPC 8.4(d), and KRPC 8.4(g). As detailed below, die Hearing Panel concludes diat die Respondent violated each of the charged offenses in this case. Additionally, die Hearing Panel concludes that the Respondent violated KRPC 1.1 in handling die Weeter case.
a. The Deputy Disciplinary Administrator did not allege diat die Respondent violated KRPC 1.1 in die Formal Complaint. However, because facts, sufficient to establish a violation of KRPC 1.1, were included in die Formal Complaint, it is appropriate to consider the additional violation of KRPC 1.1.
b. Lawyers must provide competent representation to dieir clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The Respondent does not understand that because the court found diat die attempted murder in die first degree charge lacked probable cause, refiling was inappropriate unless and until he had new or additional evidence to bring before die court. Therefore, the Respondent failed to competendy represent die state of Kansas when he refiled die charge of attempted murder in die first degree, without the benefit of new or additional evidence.
c. ‘A lawyer shall not . . . engage in undignified or discourteous conduct degrading to a tribunal.’ KRPC 3.5(d). In this case, the use of expletives to Mr. Creitz in the presence of Judge Miklos, constitutes undignified and discourteous conduct. The Hearing Panel concludes that die Respondent violated KRPC 3.5(d).
d. Prosecutors are prohibited from prosecuting a charge diat die prosecutor knows is not supported by probable cause.’ KRPC 3.8(a). In diis case, diere was a judicial determination tiiat the attempted murder in the first degree charge lodged against Mr. Weeter lacked probable cause. When the Respondent refiled that charge without die benefit of any new or additional evidence, the Respondent violated KRPC 3.8(a). Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 3.8(a).
e. Refiling the attempted murder in the first degree charge against Mr. Weeter, was prejudicial to the administration of justice. As a direct result of this misconduct, Mr. Weeter’s release from jail was delayed, Mr. Creitz had to contact a judge to discuss die bond implications, and Mr. Creitz had to prepare and file a motion to dismiss. As such, die Hearing Panel concludes diat the Respondent violated KRPC 8.4(d).
f. Using the expletives and inappropriately refiling the attempted murder in die first degree charge adversely reflects on the Respondent’s fitness to practice law. The Hearing Panel therefore concludes that die Respondent violated KRPC 8.4(g) in the Weeter case.
“RECOMMENDATION
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. In this case, the Respondent violated his duty to the public to maintain trust.
“Mental State. The Respondent knowingly violated his duty to maintain public trust.
“Injury. The legal process suffered in almost every instance of misconduct. Cases were delayed, counsel for the defendants had to prepare additional motions and memoranda, and individuals suffered personal difficulties based upon the Respondent’s misconduct.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. Although the Deputy Disciplinary Administration made no argument for aggravating factors, the Hearing Panel finds the following aggravating factors present:
“Pattern of Misconduct. The Respondent was found to have engaged in misconduct in ten separate factual settings. As a result, the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Hearing Panel has concluded that the Respondent violated KRPC 1.1, KRPC 3.4(b), KRPC 3.4(e), KRPC 3.5(d), KRPC 3.8(a), KRPC 3.8(c), KRPC 8.4(a), KRPC 8.4(c), KRPC 8.4(d), KRPC 8.4(e), and KRPC 8.4(g). Certainly, the Respondent engaged in multiple offenses.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of Prior Disciplinary Record. The Respondent has no prior disciplinary record.
“Present and Past Attitude of Cooperation. The Respondent has fully cooperated with the disciplinary authorities in this case.
“Inexperience in the Practice of Law. While the Respondent has practiced law since 1984, the misconduct in this case started shortly after the Respondent took the office of tire Bourbon County Attorney. Accordingly, the Respondent was inexperienced in the practice of law as a County Attorney.
“Previous Good Character and Reputation. The Respondent’s Exhibit Z contains a number of letters from attorneys, court personnel, law enforcement officers, crime victims, and community members. Collectively, the letters confirm that die Respondent has an aggressive and controversial approach to die practice of law. Many of the letters indicate that die Respondent cares veiy deeply for his community.
“In addition to die above-cited factors, the Hearing Panel has dioroughly examined and considered Standard 5.22. That standard provides, in pertinent part:
‘Suspension is generally appropriate when a lawyer in an official or governmental position knowingly fails to follow proper procedures or rules, and causes injury or potential injury to a party or to die integrity of die legal process.’
“The Respondent presented a plan of probation. Rule E.8 of die Internal Operating Rules of die Kansas Board for Discipline of Attorneys addresses when probation is appropriate:
‘The recommendation diat a responding lawyer be placed on probation is appropriate only in exceptional cases with persuasive mitigating factors. Probation should never be recommended unless a substantial and detailed plan of probation containing adequate safeguards to protect die public and to ensure respondent’s full compliance with the disciplinary rules and die orders of the court has been timely initiated and presented to die Hearing Panel by die respondent. In re Jantz, 243 Kan. 770, 763 P.2d 626 (1988). Special findings as to the appropriateness of probation and die specific conditions of probation should be included in die Hearing Report.’
This case is not an exceptional case, and persuasive mitigating factors are not present. Additionally, the Respondent failed to provide a ‘substantial and detailed plan of probation’ diat contains ‘adequate safeguards to protect die public and to ensure respondent’s full compliance witii the disciplinary rules and the orders of the court.’ As such, the Hearing Panel recommends that die Respondent’s request for probation be denied.
“The Hearing Panel unanimously recommends that Respondent be suspended from the practice of law in die state of Kansas, for a period of one year.
“The Hearing Panel is quite concerned with the Respondent’s reaction to die power that he wields in his position as Bourbon County Attorney. The cold record of the hearing in diis case cannot do complete justice to the attitude and demeanor that the Respondent exhibited diroughout die hearing. The Respondent apparently views himself as the sole guardian of justice and right in Bourbon County, Kansas. He views himself as better equipped than SRS in addressing the needs of juveniles. His self-image is surpassed only by an amazing lack of self-judgment. He is apparentiy a populist figure in his community and has attracted a loyal group of followers. This no doubt has contributed to his attitude and addiction to the power of his office. In this regard he is not different dian many other elected officials. However, in die opinion of the Hearing Panel, Respondent lacks the characteristics needed to effectively hold the office of County Attorney and until he understands his shortcoming he should not exercise die privilege of practicing law in the state of Kansas. It is hoped diat the Respondent will have the time for introspection during a suspension of his practice diat may lead to a better self-awareness of die deficiencies diat [led] to the filing of diese complaints.
“The Hearing Panel recommends that the Respondent be required to undergo a hearing pursuant to [Rule] 219 prior to reinstatement to die practice of law in die State of Kansas. At the time the Respondent applies for reinstatement, it is recommended that the Hearing Panel consider whether the Respondent should be allowed to hold the office of County Attorney. In making diis determination, die Hearing Panel should review whedier the Respondent fully understands his wrongdoing in diis case, and also understands how to effectively and appropriately carry out the duties of County Attorney.
“Costs are assessed against die Respondent in an amount to be certified by die office of die Disciplinary Administrator.”
Respondent’s exceptions and brief on appeal.
Pursuant to Supreme Court Rule 212(c) (2000 Kan. Ct. R. An-not. 254), respondent filed exceptions to the final hearing report relating to findings allegedly incorrectly made or which it is claimed should have been made. Respondent further contends the report exceeds the charge of Rule 212(f) to make findings and recommendations and has editorialized its view of “political correctness” which is not a part of its function under Supreme Court Rule 211 (2000 Kan. Ct. R. Annot 250).
We will consider respondent’s stated exceptions and arguments in his brief as relates to the separate instances. Respondent also contends that a lesser discipline should be imposed and has submitted an amended probation plan whose consideration is not opposed by the office of the Disciplinary Administrator, but it contends that exceptional circumstances do not exist in this case to justify its imposition and asks the recommendation of the hearing panel be followed.
Gray Case — Count I
Respondent admits to violations of KRPC 1.1, 3.4(e), 8.4(d) and (g), but does argue that he should not be disciplined for cautioning jurors not to touch syringes admitted into evidence, and he was new in the county attorney’s role when the case was tried and his experience should be a mitigating factor.
We need not discuss State v. Gray, in detail which is reported in 25 Kan. App. 2d 83, 958 P.2d 37 (1998), except to note that the ethical violations relating thereto were recognized in an appellate decision requiring a new trial. Respondent’s conduct, while falling short of ethical standards and reflective of his failure to comprehend the obligation and delicate balance a prosecutor must follow under KRPC 3.8, was violative of the rules as admitted. Viewed individually as an isolated incident this would be less serious, but as a part of a pattern of continued abuses, these violations may not be minimized as respondent suggest.
Awbrey Hawpe Case — Count II
Respondent objects to the hearing panel designating this count as the “Manufactured Evidence Case” as an illustration of the nonobjective role it took in this matter. He contends his own handkerchief in the paper sack was never marked as an exhibit, represented improperly, and could have been used as “demonstrative evidence.”
This is an example of respondent’s bad judgment as he finally, when appearing before our court and after attempting to justify his actions, admitted he had an obligation to disclose essential facts of the case, which he failed to do. His suggestion that the paper sack was there to potentially embarrass the defendant shows a totally deficient understanding of his obligations as a prosecutor. We hold that the panel properly found violations of KRPC 8.4(a) and 8.4(c) but there was no violation of KRPC 3.3.
Briggs Case — Count III
Although respondent was the victim of Mark Briggs’ thievery, he failed to understand the difference between being a county attorney and a victim. He should also have realized that speaking with Briggs (even when Briggs contacted him) after Briggs was represented by counsel was a clear ethical violation.
Respondent admits that KRPC 8.4(e) was violated because he implied he could influence the special prosecutor. This was a direct violation. Respondent’s actions in allowing contact with Briggs on multiple instances and obtaining incriminating statements (even though legally suppressed) are violations of KRPC 8.4(d), which states it is professional misconduct to “engage in conduct that is prejudicial to the administration of justice” and KRPC 8.4(g), which states a lawyer must not “engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law. Respondent’s arguments to the contraiy are without merit.
Gardner Case — Count IV
Respondent suggests that because Gardner had been previously advised of his rights and made statements, his question about what the phrase “or else” meant was actually exculpatory and not incriminating. This does not justify contacting the unrepresented Mr. Gardner shortly before counsel was appointed and shows bad judgment since any statement, even if properly received, would require respondent to become a witness and not a prosecutor. Any harm was cured by a motion to suppress which should never had to be filed but we hold the hearing panel properly found violations of KRPC 3.8(c) and KRPC 8.4(d).
Reyes/juvenile Case — Count V
We do not take umbrage to the extent the hearing panel did to respondent’s remark that one of the reasons a bond should not be reduced was because the defendant was Hispanic and could flee to a Spanish speaking county which might make extradition difficult. We agree that ethnicity should not be evidence of flight risk but respondent’s response to the hearing panel contains additional reasons to justify opposing bond reduction. Respondent said:
“This was a serious charge involving a child victim .... the man . . . had no known ties to the community or the State ... he had a long criminal history according to his triple I, with at least two serious person felonies on it. ... I wanted a high bond, or one high enough that some bondsman would go get him no matter where he went.”
The record does not contain clear and convincing evidence that respondent’s arguments were based solely on the ethnicity of the defendant, and while we find the tenor of his statements to be ill advised and lacking in the understandable feelings of citizens, we do not find that KRPC 8.4(d) or 8.4(g) were violated based on the statements in the Reyes bond reduction hearing.
We do find respondent’s conduct in the three cases relating to the juveniles to be much more troubling and shows a lack of the civility that is necessary for one with public trust and responsibility.
Slavery comments
To position oneself in front of and to shout at an African-American teenage girl concerning her being a slave (if only to her mother) is clearly an offensive remark that shows insensivity to the right of individuals. The difficult question is, when does bad taste and political incorrectness becomes violative of an attorney’s obligation under KRPC 8.4(g) to not “engage in other conduct that adversely reflects on the lawyer’s fitness to practice law.” While there are numerous violations in this case and we need not embark on analyzing whether free speech rights should be an issue here, we uphold the hearing panel’s finding of a KRPC 8.4(g) violation.
Advice to chain child to bed
This is another “off the wall” comment of an elected public official that has no place in the effective and orderly administration of justice. To advise a father to chain a child to a bed so he could get some sleep (notwithstanding the turmoil the family was in over the problems the child was causing and the inability of juvenile authorities to place the child in a secure facility) was flippant and totally inappropriate. The fact the father did so and SRS custody resulted in a tragedy does not make what respondent calls “tough advice” justifiable. We agree with the hearing panel’s conclusion that KRPC 8.4(g) was violated.
Suicide comments
Respondent cannot justify his comments that when informed that a 14-year old child was suicidal, he stated that he hoped the child would commit suicide because everybody would be better off. While he now says his comment was never intended to be taken seriously, it is unpardonable to tell social workers that they should bring the child to his office and he would show the child how to commit suicide. These comments are beyond the pale of decency and clearly justify the hearing panel’s finding of KRPC 8.4(g) violation.
An additional sign of the respondent’s arrogance and unfitness for public office was his defense of his statements to SRS officials that “I do not have a great deal of respect for [them] and take advantage of their stupidity as often as possible.” To reiterate such an nondefensible position at the hearing shows a lack of respect for individuals and views different from one’s own which is truly appalling.
Public Corporal Punishment Comments — Count VI
Respondent contends his public support of paddling for children is not “public” or made in lieu of bringing formal juveniles proceedings. The hearing panel opined and this court agrees that views differ on corporal punishment and respondent has the right to express his personal opinion on the subject. We hold, however, that it is improper to turn one’s private beliefs into a public practice as respondent has done. While there appears to be justifiable disagreement as to this practice, the usage of a personal belief does reflect adversely on respondent’s fitness to practice law, and we approve the hearing panel’s conclusions that KRPC 8.4(d) and 8.4(g) were violated.
Weeter Case — Count VII
Respondent admits that he should not have used expletives in the courtroom after the conclusion of the Weeter prehminary hearing and should be disciplined for doing so. He also admits that his responses to a reasonable request of defense counsel were undignified and discourteous and a violation of KRPC 3.5(d) (undignified or discourteous conduct degrading to a tribunal).
Respondent does not agree that there was an ethical violation prejudicial to the administration of justice by refiling charges that were dismissed in the prehminary hearing 2 hours earlier. While he attempted to justify it by stating additional evidence would become available, it clearly appears the fifing was accomplished in anger. While it was hoped the required new evidence would become available, such was not certain when the fifing was made. This is a violation of KRPC 3.8(a) (prosecuting a charge . . . not supported by probable cause).
The use of the “F” word on several occasions in the Weeter matter and the anger shown by the respondent reflects adversely on his fitness to practice law and specifically to competently and fairly carry out the duties of a prosecutor.
We hold the hearing panel correctly held that violations of KRPC 3.5(d), 3.8(a), 8.4(d), and 8.4(g) were proved by clear and convincing evidence.
Discipline to be imposed
Standard of review
We said in In re Carson, 252 Kan. 399, 406, 845 P.2d 47 (1993), that our standard of review of the recommended sanctions to be imposed is as follows:
“In State v. Klassen, 207, 414, 415, 485 P.2d 1295 (1971), we explained that we have a ‘duty in a disciplinary proceeding to examine the evidence and determine for ourselves the judgment to entered.’ In State v. Zeigler, 217 Kan. 748, 755, 538 P.2d 643 (1975), this court stated that, although the report of the disciplinary board ‘is advisory only, it will be given die same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where die evidence consisted of sharply conflicting testimony.’ See In re Farmer, 242 Kan. 296, 299, 747 P.2d 97 (1987).”
Recommendations of the parties
We have previously set forth the recommendation of the hearing panel which was a 1-year suspension with a hearing pursuant to Supreme Court Rule 219 (2000 Kan. Ct. R. Annot. 274) prior to reinstatement being granted with emphasis on respondent’s fitness to hold a prosecutor’s position.
The Disciplinary Administrator argues persuasively that respondent fails to recognize the harm caused to his office and the public by his conduct in what amounts to 10 different incidents of misconduct, and the discipline recommended by the hearing panel is appropriate and should be imposed. The Disciplinary Administrator further suggests that the suggested plan of supervised probation including resignation from the office of county attorney is not based on exceptional and persuasive mitigating factors and would be an inappropriate sanction. The Disciplinary Administrator recommended, like the hearing panel, that respondent be suspended from the practice of law.
The respondent first asks for discipline to be limited to published censure or a short suspension for violations which he admits did take place in the Gray, Briggs, and Weeter cases. He argues these are negligent, not intentional, acts. In his brief he admits to a lack of discretion in his remarks and rare incompetence which he says “lies not from laziness or stupidity but from overzealous and impassioned representation of . . . the state of Kansas.”
The respondent argues that other than the violations he admitted, there is not clear and convincing evidence of the violations, or the incidents do not constitute ethical violations. In essence, he tries to characterize his conduct as being politically incorrect, bad humor, and intemperate, but not ethical violations.
If all the violations are found by the court to exist, respondent asks in his amended plan of probation to be allowed to resign as Bourbon County Attorney, but if requested, to serve as an assistant until eligible for Kansas Public Employees Retirement System benefits as of January 1, 2002. He further agrees to retire from the practice of law, and on the next regular renewal date, to elect inactive status. He agrees to be placed under direct supervision of attorney Zachery E. Reynolds who will monitor his probation plan.
Decision of the court
We recognize the respondent’s attempt to compare his conduct with six unrelated attorney disciplinary cases but do not find that helpful in our decision or to respondent’s benefit. As we said in In re Bailey, 268 Kan. 63, 64-65, 986 P.2d 1077 (1999):
“In Jones, we noted that ‘[comparison of past sanctions imposed in disciplinary cases is of little guidance.’ 252 Kan. at 239. It is not helpful, therefore, for the respondent to point out past disciplinary actions in the hopes that the disposition for this case will be similar. Each case should be evaluated based on its specific facts and circumstances. In determining the appropriate discipline to be imposed for violating the disciplinary rules, we consider the facts surrounding the violation as well as any aggravating or mitigating circumstances. State v. Stakes, 227 Kan. 711, 720, 608 P.2d 997 (1980).”
Attorneys may be guilty of boorish conduct without such actions becoming an ethical violation. We are likewise hesitant .to become guardians of what in the current vernacular is deemed to be polit ically correct or incorrect conduct. Having said this, we are drawn back to what we said in State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000); “A prosecutor is a servant of the law and a representative of the people of Kansas.” When one undertakes the responsibility of prosecution we must view his or her conduct by an enhanced standard. See United States v. Young, 470 U.S. 1, 25, 84 L. Ed. 2d 1, 105 S. Ct. 1038 (1985).
We need not here set forth the KRPC 3.8 statements of the special responsibilities of a prosecutor which are ethical standards that must be adhered to and followed. We do point out that violations have been found of KRPC 8.4 and in our comments to that rule, it is stated:
“Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer s abuse of public office can suggest an inability to fulfill the professional role of attorney.”
The hearing panel noted the many letters sent in support of respondent as indicating he cared very deeply for his community but also confirmed his aggressive and controversial approach to the practice of law. These submissions also call attention to respondent’s military service which included several tours in Viet Nam and decorations for exemplary service for which he is entitled to be commended. However, continuing to exhibit conduct which might be acceptable in the military while in the public sector and, specifically, in the role of a prosecutor is not to be condoned or tolerated. This may in part explain the respondent’s persona, but it makes such actions no less objectionable.
Respondent is entitled to the observation that he had no previous complaints or violations during the period of his private practice of law. All of the complaints before us involve conduct as a public official.
In determining the appropriate discipline, we point out this is not a suit to oust respondent from the public office to which he was appointed in 1994 and subsequently elected in 1996 and reelected in 2000. The will of an electorate in returning respondent to the office of county attorney must likewise be considered in our imposition of discipline.
The court is in substantial agreement as to the numerous violations and finds there is clear and convincing evidence that respondent has committed the following ethical violations in the respective counts:
Gray, Count I Rule 1.1, 3.4(e), 8.4(a), (d) and (g)
Hawpe, Count II Rule 8.4(a) and (c)
Briggs, Count III Rule 8.4(d), (e), and (g)
Gardener, Count IV Rule 3.8(c) and 8.4(d)
Reyes, Juvenile, Count V Rule 8.4(g)
Public Punishment, Count VI Rule 8.4(d) and (g)
Weeter, Count VII Rule 3.5(d), 3.8(a), 8.4(d) and (g)
While a minority of the court would impose lesser discipline, the majority of the court finds that the public will be sufficiently served if respondent is allowed to serve as Bourbon County Attorney until January 1, 2002, when he stated in his amended plan of probation he will be vested for purposes of his participation in the Kansas Public Retirement System (KPERS) and eligible to receive benefits thereunder. Although he offered in his amended probation plan to resign immediately upon acceptance of his probation plan, we accept his offer but make it effective January 1, 2002. We also accept respondent’s intention set forth in his amended probation plan to retire from the practice of law when he becomes eligible for KPERS benefits (January 1, 2002), and on the next regular renewal date (July 1, 2002), to elect inactive status with respect to his license to practice law. During the period until respondent’s resignation becomes effective, he is expected to ethically perform his duties as Bourbon County Attorney.
It Is Therefore Ordered that the findings of fact and conclusions of law of the hearing panel are approved subject to the limitations of this opinion, and clear and convincing evidence support the findings that respondent violated KRPC Rule 1.1, 3.4(e), 3.5(d), 3.8(a) and (c), and 8.4(a), (c), (d), (e), and (g).
It Is Further Ordered that the imposition of discipline against John Lloyd Swarts, III, be suspended and that he be placed on supervised probation under the terms of this order.
It Is Further Ordered:
(1) Respondent is allowed to serve as Bourbon County Attorney until January 1, 2002, until he is vested for purposes of his participation in KPERS and eligible to receive benefits thereunder.
(2) Respondent’s offer to resign from the Office of Bourbon County Attorney effective January 1, 2002, is accepted by the Court, and he is directed to properly tender his resignation effective on such date.
(3) Respondent’s offer to retire from the practice of law when he becomes eligible for KPERS benefits (January 1, 2002), is accepted and on die next renewal date (July 1, 2002), he is to elect inactive status with respect to his license to practice law.
(4) Respondent shall not violate any of the Kansas Rules of Professional Conduct during his remaining service as Bourbon County Attorney.
It Is Further Ordered that in the event respondent fails to abide by the conditions set out herein, a show cause order shall be issued to respondent, and this court shall take whatever disciplinary actions it deems just and proper, including disbarment, without further formal proceedings.
It Is Further Ordered that this order be published in the official Kansas Reports and that costs of the proceeding be assessed to respondent. | [
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Per Curiam-.
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Kelly C. Brown, an attorney admitted to the practice of law in Kansas, whose last known business address is Topeka, Kansas.
The respondent stipulated that her conduct violated Kansas Rules of Professional Conduct (KRPC) 1.3 (2000 Kan. Ct. R. An-not. 310) (failing to act with reasonable diligence and promptness in representing a client); KRPC 1.4 (2000 Kan. Ct. R. Annot. 320) (failing to keep a client reasonably informed about the status of a matter and promptly complying with reasonable requests for information); and Supreme Court Rule 207 (2000 Kan. Ct. R. Annot. 237) (failing to assist in investigations).
The hearing panel, by clear and convincing evidence, unanimously made the following findings of fact:
'T. . . . The Respondent was admitted to the practice of law in the state of Kansas on September 20, 1986.
“2. Jennifer G. Best and the Respondent attend the same church. On occasion, the pastor of the church has asked the Respondent to provide legal assistance to parishioners at reduced fees. The pastor referred Ms. Best to the Respondent.
"3. In 1997, Ms. Best initially contacted the Respondent regarding post-divorce matters. Thereafter, Ms. Best retained the Respondent to file and prosecute a motion to modify child support. The Respondent and Ms. Best agreed to a fee of $400.00. By September 8, 1998, Ms. Best had paid the fee.
“4. On November 25,1998, in the District Court of Jefferson County, Kansas, the Respondent filed a motion to enforce and modify child support in behalf of Ms. Best. Thereafter, the Respondent traveled to Oskaloosa, Kansas, and appeared in behalf of Ms. Best at a hearing on that motion.
“5. In April, 1999, the court entered an order reducing die child support payable to Ms. Best because one of the children of the marriage had previously graduated from high school.
“6. However, it was Ms. Best’s opinion that her former spouse’s income had increased, therefore the child support ordered should be increased. Ms. Best and her former spouse each alleged that the other was concealing income. Because Ms. Best’s former spouse is self-employed, it was difficult to determine whether there was unreported income.
“7. Thereafter, the Respondent filed a motion to set aside the order modifying child support and a request for production of documents from Ms. Best’s former spouse. That motion was heard in July, 1999. Again, the Respondent traveled to Oskaloosa, Kansas, and appeared in behalf of Ms. Best. At that time, the court ordered that the parties attempt to resolve their dispute via mediation. However, because Ms. Best’s former spouse refused to participate, mediation was unsuccessful.
“8. After tire attempt at mediation failed, the Respondent believed that she had completed her representation of Ms. Best. However, the Respondent failed to make it clear to Ms. Best that the representation had been completed.
“9. Thereafter, beginning in September, 1999, communication between the Respondent and Ms. Best broke down.
“10. The evidence regarding the events subsequent to September, 1999, is somewhat in conflict. Ms. Best testified that, since September, 1999, she has not had any communication with the Respondent regarding the post-divorce child support matters. However, the Respondent’s file establishes that, in October, 1999, the Respondent contacted Ms. Ardith Woertz, a domestic relations case manager. The Respondent testified that she questioned Ms. Woertz regarding the procedure to have a case manager appointed in a domestic relations case. Ms. Woertz explained that the Respondent would need to file an appropriate motion and obtain an order appointing a case manager. Finally, although it is unclear when the Respondent discussed die possibility of the appointment of a case manager, it is clear that the Respondent did discuss that option with Ms. Best, as Ms. Best was familiar with the term case manager and with Ardith Woertz’ name,
“11. The Respondent did not file a motion to have a case manager appointed in Ms. Best’s case. Additionally, the Respondent did not withdraw as attorney of record for Ms. Best. i
“12. The Respondent moved her law office and failed to provide Ms. Best with the change of address information. Ms. Best learned of the change of address when a letter was returned with a notation of the new office address.
“13. The Respondent failed to return telephone calls from Ms. Best. The Respondent failed to respond to letters sent by Ms. Best.
“14. On August 14, 2000, Ms. Best forwarded a written complaint to the Office of the Disciplinary Administrator. Thereafter, on August 29, 2000, Frank D. Diehl, Deputy Disciplinary Administrator, sent a letter to the Respondent, notifying the Respondent that Ms. Best filed a complaint and requesting that the Respondent provide a written response to the complaint. The Respondent failed to respond to Mr. Diehl’s letter.
“15. Then, on September 5, 2000, Richard F. Hayse, attorney investigator, wrote to the Respondent requesting that the Respondent provide a written response to Ms. Best’s complaint. Again, the Respondent failed to respond.
“16. Mr. Hayse sent a second letter on October 26, 2000. In that letter, Mr, Hayse requested that the Respondent provide her written response no later than November 6, 2000. On November 7, 2000, the Respondent sent a letter to Mr. Hayse requesting that she be permitted to respond to Ms. Best’s complaint by November 8, 2000. The Respondent failed to provide a written response by November 8, 2000.
“17. On November 29, 2000, Mr. Hayse sent a note to the Respondent via facsimile. In his note, Mr. Hayse reminded the Respondent that she had promised to provide a written response to the complaint. On December 3, 2000, the Respondent wrote to Mr. Hayse, requesting that she have until December 7, 2000, to respond to Ms. Best’s complaint. The Respondent never provided a written response to the complaint.
“18. At the hearing on this matter, the Respondent testified that she failed to respond to Ms. Best’s letter of complaint because she was overwhelmed, because she was angry, and because she had other things to do. The Respondent assured the Hearing Panel that this misconduct will not occur again. The Respondent testified that a subsequent complaint has been filed against her and that she timely responded to that complaint.’’
Based on the foregoing stipulation of facts, the hearing panel made the following conclusions of law:
“1. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to act with reasonable diligence and promptness in representing Ms. Best when she failed to either file a motion to have a case manager appointed or withdraw from the case. As such, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“2. KRPC 1.4 provides:
‘(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
‘(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.’
The Hearing Panel concludes that the Respondent violated KRPC 1.4(a) when she failed to respond to Ms. Best’s telephone messages and letters. The Hearing Panel also concludes that the Respondent violated KRPC 1.4(b) when she failed to provide sufficient information to allow Ms. Best to make informed decisions regarding whether to pursue the appointment of a case manager.
“3. Kan. Sup. Ct. R. 207(b) provides as follows:
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’
The Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 207(b) by failing to provide a written response to the complaint or otherwise comply with the requests of the Office of the Disciplinary Administrator and the disciplinary investigator.”
The hearing panel therefore made the following recommendation:
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated her duty to her client to provide adequate communication and diligent representation. Additionally, the Respondent violated her duty to the profession to cooperate in disciplinary investigations.
“Mental State. The Respondent negligently violated her duty to her client. The Respondent knowingly violated her duty to the profession.
“Injury. It is difficult to assess whether Ms. Best suffered any actual injury. Certainly, Ms. Best suffered potential injury.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. On July 10, 2000, the Respondent was informally admonished for violating KRPC 1.1, . . . KRPC 1.4, and Kan. Sup. Ct. R. 207.
“Pattern of Misconduct. The Respondent engaged in a pattern of misconduct when she repeatedly failed to communicate with Ms. Best and when she repeatedly failed to respond to the complaint filed in this case.
“Substantial Experience in the Practice of Law. The Respondent was admitted to the practice of law in 1986. At the time the Respondent committed the misconduct in this case, she had been practicing law for thirteen years. Accordingly, the Hearing Panel concludes that at tire time she committed the misconduct, the Respondent had substantial experience in the practice of law.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of Dishonest or Selfish Motive. There was no evidence presented that the Respondent’s misconduct was motivated by dishonesty or selfishness.
“Previous Good Character and Reputation. The Respondent is an active and productive member of the bar in Topeka, Kansas, She enjoys the respect of her peers and her friends. Additionally, the Respondent generally possesses a good character and reputation as evidenced by the testimony of the Honorable Daniel Mitchell and Randy Baird and several letters received by the Hearing Panel.
“Remorse. Clearly, at die hearing on this matter, the Respondent expressed genuine remorse for engaging in the misconduct.
“In addition to die above-cited factors, the Hearing Panel has thoroughly examined and considered the following standards:
‘Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.’
Standard 4.43.
‘Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession and causes injury or potential injury to a client, the public, or the legal system.’
Standard 7.2.
“Although Standard 7.2 suggests that suspension is appropriate in this case, the Hearing Panel concludes that public censure is die appropriate sanction based on the compelling factors in mitigation and the language of Standard 4.43. Accordingly, the Hearing Panel unanimously recommends that Respondent be publicly censured.”
We find there is clear and convincing evidence establishing the violations found by the hearing panel. We agree with the panel’s recommendation concerning disposition. In so doing, we adopt the findings and recommendation of the panel as set forth above.
It Is Therefore Ordered that the respondent be disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (2000 Kan. Ct. R. Annot. 224) for her violations of the Kansas Rules of Professional Conduct.
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs of the proceeding be assessed to the respondent. | [
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The opinion of the court was delivered by
Brazil, J.:
Michael Jenkins appeals his jury conviction of two counts of involuntary manslaughter and one count of making false information following a traffic collision on August 19, 1999, involving two fatalities. While initially charged with two counts of second-degree murder and two counts of making false information, the juiy settled on the lesser included offense of involuntary manslaughter. The State’s theory at trial was that Jenkins recklessly drove the day of the collision, knowing his propensity for epileptic seizures would endanger other drivers.
Jenkins’ vehicle collided with the back of Sherri Kim Yauk’s vehicle as Yauk was stopped at a red light. The collision caused the deaths of Yauk’s two children, Brett and Laura. Prior to the collision, one witness observed Jenkins driving 5 to 20 miles over the speed limit of 40 miles per hour. Jenkins never slowed before colliding with Yauk.
Mindy Johnson, who was working as a traffic accident investigator the day of the accident, testified Jenkins said “he was driving, he felt dizzy, and the next thing he knew, he had been'involved in an accident.”
Officer Steven Kenney tested Jenkins following the collision to determine whether Jenkins was under the influence of any medications or was otherwise impaired. His evaluation, which included field sobriety tests, breath tests, and blood and urine tests, revealed that Jenkins was not under the influence of any substances.
Jenkins testified he learned about his epilepsy in 1974 or 1975, but that it did not affect his driving until 1990.
The State presented evidence of Jenkins’ involvement in seven prior automobile accidents during the period beginning in 1990 to February 26, 1999.
August 16, 1990
Jenkins, who was involved in an accident, left the scene, but was later found. According to Officer Willard Buffin, Jenkins said that “he had felt faint, had noticed some rubbing of something on his vehicle as he was driving, had pulled over and realized he had been involved in an accident, and was on his way home to report the accident when he was stopped by an officer.”
Following the collision, Jenkins saw Gina Kader, a medical doctor. Jenkins testified he told Dr. Kader about the collision, which he thought was caused by a seizure.
April 9, 1992
Jenkins “rear-ended” a truck. Jenkins’ contemporaneous statement was that he “[w]as driving north on Hillside and felt light headed. Didn’t realize I had accident until pulled from my vehicle. I had seizure and was involved in accident.” Dr. Kader, who was contacted by a traffic accident investigator, indicated that she believed the accident was caused by a seizure.
May 29, 1992
The police report in this accident included Jenkins’ own description of the accident: “I was east bound on Kellogg in the center lane and felt myself starting to have a seizure. I was in traffic and couldn’t get pulled off the road. Next I realized I had been in an accident and pulled off of Kellogg, inspected vehicle as officer pulled up.” Jenkins testified that he told Dr. Kader about the April 9 and May 29, 1992, accidents as well.
Jenkins wanted a second opinion, and went to see Mark Mandelbaum, a medical doctor, around late August 1992 or early September 1992. According to Dr. Mandelbaum, Jenkins reported “having up to eight seizures a month” and that he had recently been in an automobile collision. Dr. Mandelbaum testified that he recommended Jenkins not drive, but Jenkins indicated he was going to continue to do so.
January 27,1993
Jenkins’ wrote the following after this accident: “Arriving home from work & felt dizzy, tried to get off K-15. I started to pull off onto a driveway. That is the last thing I remember until someone was pulling me out of wrecked vehicle.”
March 22, 1993
Jenkins was involved in an accident with Candace Flattick. Trooper Mark Wright testified Jenkins said he had had a seizure prior to the accident. After the collision, Wright checked Jenkins’ driving record and discovered that Jenkins had a history of traffic collisions. When confronted with the prior collisions, Jenkins “indicated . . . that he had had seizures.” After discovering this information, Wright sent a letter to the Department of Revenue (DOR) to express his concerns about Jenkins’ driving record. The DOR sent a letter, dated April 7, 1993, to Jenkins asking him to see a physician for an evaluation.
Jenkins testified he again saw Dr. Kader following the March 22, 1993 collision. Presumably, in response to the DOR’s letter, Jenkins testified he told Dr. Kader of his prior collisions and that he believed them to have been caused by his seizures. Dr. Kader recommended Jenkins not drive. The DOR in its June 2, 1993, letter revoked Jenkins’ license “until we receive an acceptable medical report which indicates that you have remained seizure free for six (6) full months, that you are medically capable of operating a motor vehicle safely, and that you should be granted driving priv ileges.” Jenkins testified he had gone a year without a driver’s license into 1994.
Dr. Kader’s notes of September 14,1993, point out that Jenkins “resents not being able to drive.” Dr. Kader’s notes from April 6, 1994, revealed that she felt Jenkins’ “seizures [were] well controlled.” Jenkins signed a medical form April 19, 1994, on which he wrote the following remarks: “In March of 19931 had a seizure and caused an accident. I have not had any seizures since then. I have taken medication for epilepsy for 22 years.”
In response to a different question on the same form, Jenkins affirmatively responded to the question of whether he had experienced or had been treated for blackout spells, dizzy spells, epilepsy, seizures, loss or alteration of consciousness. However, Jenkins failed to complete the follow up question required by the form requesting the date of his last such episode. On the condition that Jenkins submit annual medical reports, Jenkins’ license was reinstated on June 2, 1994. The medical form Jenkins signed dated January 19,1995, also failed to fist the date of Jenkins’ last episode. Dr. Kader also failed to answer on the form whether, in her professional opinion, Jenkins was physically or mentally capable of safely operating a motor vehicle. As a result of the 1995 medical form, the DOR continued Jenkins’ license.
According to Jenkins’ testimony, he again began to experience seizures toward the end of 1995. About this time Jenkins first began seeing Dr. Rizwan Hassan, a neurologist. Dr. Hassan evaluated Jenkins on January 19, 1996. Jenkins testified he told Dr. Hassan about the prior collisions. Dr. Hassan testified Jenkins said he was averaging one to two “spells” per month. On the medical form Jenkins filled out dated January 19,1996, Jenkins indicated he had not experienced “blackout spells, dizzy spells, epilepsy, seizures, loss or alteration of consciousness.” The part of the form filled in by Dr. Hassan disclosed that Jenkins had had a seizure on January 16, 1996. Dr. Hassan based this disclosure on what Jenkins had stated. The DOR in its April 1,1996, letter informed Jenkins of its decision to not allow him to drive and again revoked his driving privileges.
Jenkins testified Dr. Hassan prescribed medication which was effective in controlling the seizures. Jenkins submitted another medical form dated August 23, 1996. Jenkins admitted to having a loss of consciousness within the past 3 years and indicated the last such loss of consciousness was January 19, 1996. Dr. Hassan indicated on the form that the date of Jenkins’ last unconscious episode was January 19, 1996. As a result of this medical form, the DOR permitted Jenkins to reapply for a driver’s license on September 9, 1996. He passed a full driver’s examination test and restricted driving privileges were reinstated.
December 20, 1996
According to Trooper Jimmy Atkinson:
“[Jenkins] was traveling in a westerly direction on Harry Street, and there’s a grassy area of the embankment which runs down to 1-135. Appears that he lost consciousness, traveled down the embankment, still in a westerly direction, and went into northbound traffic — at that time it was rush hour — and collided into one vehicle, kept going. And the one vehicle that he collided, collided into another vehicle which was in the inside lane, and I believe Mr. Jenkins’ vehicle thereafter traveled maybe a couple hundred feet before coming to rest.”
Jenkins described, in his contemporaneous written statement, what he remembered from the accident: “I was driving west on Harry Street just east of 1-35 when I felt light headed. The next I remember was being involved in an accident just south of Harry on 1-35.”
Jenkins had to complete another medical form dated February 21,1997. While admitting to (1) having an accident; (2) having had his license revoked; and (3) having a blackout spell, dizzy spell, epilepsy, seizure, loss or alteration of consciousness within the past 3 years, he did not indicate the date of his last such episode. His driving privileges were thereafter continued, with an annual medical report being required.
On February 15,1999, Jenkins signed another medical form. He indicated his last date of “blackout spells, dizzy spells, epilepsy, seizures, loss or alteration of consciousness” was in November 1996.
February 26,1999
Patricia Byers, a traffic accident investigator, described this wreck as a rearend collision involving three vehicles. Jenkins was driving one of the vehicles. Byers talked with Jenkins after the accident and Jenkins described the event as follows: “He told me he wasn’t feeling well; that he was light-headed and had felt dizzy and had been trying to pull his vehicle over before the accident, and he didn’t remember anything past turning off — turning onto Douglas Street.”
Jenkins had possession of the medical form he signed on February 15, 1999, until as late as March 2, 1999. Dr. Hassan did not sign the form until March 3, 1999. Dr. Hassan indicated on the form that January 1996 was Jenkins’ last episode. Dr. Hassan testified that Jenkins had failed to mention the February 26, 1999, incident. Based on this medical form, the DOR again continued Jenkins’ driving privileges.
Dr. Hassan testified Jenkins did mention the February 26,1999, collision during an appointment on August 6,1999, but that Jenkins claimed there was no seizure involved. Jenkins visited Dr. Hassan again on September 26, 1999, and confessed that he had two seizures on August 19, 1999.
I. SUFFICIENCY OF THE EVIDENCE
Jenkins argues the State failed to present sufficient evidence to support his convictions of involuntary manslaughter. This court in State v. Jamison, 269 Kan. 564, 571, 7 P.3d 1204 (2000), explained the standard of review for sufficiency of evidence:
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]”
The jury convicted Jenkins of the version of involuntary manslaughter requiring proof of the unintentional killing of a human being committed recklessly. See K.S.A. 2000 Supp. 21-3404(a). The trial court instructed the jury on the following definition of recklessness:
“Reckless conduct means conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The terms ‘gross negligence,’ ‘culpable negligence,’ ‘wanton negligence’ and ‘wantonness’ are included within ‘reckless.’ ”
The above definition is substantially similar to the definition of “reckless conduct” found at K.S.A. 21-3201(c).
Based on the State’s theory, the issue is whether a rational fact-finder could have found that Jenkins demonstrated a realization of the imminence of danger and a conscious and unjustifiable disregard of that danger when he decided to drive his car prior to the fatal collision.
Jenkins argues that his history of accidents caused by seizures was not sufficient evidence to support the jury’s verdict. Jenkins relies on State v. Huser, 265 Kan. 228, 959 P.2d 908 (1998). This court in Huser reviewed the State’s appeal from the trial court’s dismissal of two counts of reckless aggravated batteiy. The Huser court affirmed the district court, holding that evidence of driving under the influence does not, standing alone, amount to reckless behavior. 265 Kan. at 234.
The Huser court relied on and quoted extensively from State v. Mourning, 233 Kan. 678, 664 P.2d 857 (1983). The Mourning court considered whether reckless driving and driving under the influence of alcohol or drugs were the same offense for double jeopardy purposes. The Mourning court concluded that the two crimes required different evidence. 233 Kan. at 681. In its analysis, the Mourning court addressed the State’s argument that “any time a person under the influence of alcohol or drugs operates a vehicle he does so in willful or wanton disregard for the safety of others.” 233 Kan. at 682. The Mourning court rejected this argument by pointing out that driving under the influence only requires driving when impaired, not swerving or driving recklessly. 233 Kan. at 682.
Jenkins would have this court interpret Huser as standing for the proposition that there can be no criminal liability for reckless behavior anytime a person drives knowing he or she suffers from any condition that might preclude his or her ability to safely operate a vehicle. Such cannot be the law. The better interpretation of Huser is simply that the mere proof of driving under the influence is insufficient to prove recklessness.
The State has presented sufficient evidence of recklessness. The State’s evidence showed that Jenkins’ history of past accidents was caused by his susceptibility to seizures. The State provided evidence of seven such accidents. This case is different from Huser. In Huser, there was no evidence that the defendant had a conscious disregard for a known danger.
The Huser court also pointed out that “[ojne’s behavior is only reckless if he or she realizes that his or her conduct creates imminent danger to another person but consciously and unjustifiably disregards the danger. [See K.S.A. 21-3201(c).j” 265 Kan. at 234. Jenkins’ seven prior collisions provided sufficient evidence to show that Jenkins knew of the imminent danger he created for other motorists.
Based on Huser, Jenkins is correct to note that driving in an impaired condition is alone insufficient evidence of recklessness. Had the seizure been Jenkins’ first, he would not have had any criminal liability because he would not have had any reason to believe he was putting other motorists in danger by driving. Here, the jury understandably found that Jenkins knew of the imminent danger before driving and consciously disregarded it. The seizure was not a surprise to Jenkins.
II. LACK OF CAPACITY
Jenkins argues the trial court erred in failing to instruct the jury (1) that the mere act of driving with an epileptic condition without proof of an additional act of recklessness cannot satisfy the State’s burden; and (2) that it is an absolute defense if the jury would find that Jenkins suffered from an epileptic seizure and was, therefore, unable to control his actions.
The court in State v. Mitchell, 269 Kan. 349, 355, 7 P.3d 1135 (2000), explained the analysis for reviewing jury instructions:
“When reviewing challenges to jury instructions, we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citation omitted.]”
In a criminal action, the district court must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence. State v. Barnes, 263 Kan. 249, 265, 948 P.2d 627 (1997).
Jenkins requested the following instruction:
“The mere act of driving in an impaired condition cannot, as a matter of law, satisfy the requirements of recklessness as defined in these instructions. The State must prove an independent act of recklessness beyond that of knowing one has or may have a condition of impairment in their driving.”
The trial court refused to give the instruction. Jenkins stated in his brief on appeal that the issue here was linked to his prior arguments regarding reckless conduct and provided no further analysis beyond pointing out how the trial court should have instructed the jury on the defendant’s theory of the case.
The State first argues that it provided proof of the following additional indicia of recklessness: (a) Jenkins’ prior accidents; (b) his decision to drive after being warned not to; and (c) his failure to. report past seizures while driving. Second, the State responds by pointing out how Jenkins’ attorney nevertheless argued the theory that the mere act of driving while in an impaired condition cannot meet the reckless standard.
As our analysis of the first issue suggests, the act of recklessness was Jenkins’ decision to drive knowing his propensity to have seizures. The State proved this recklessness through Jenkins’ prior collisions, Jenkins’ decision to drive despite being warned by Dr. Mandelbaum and Dr. Kader not to drive, and Jenkins’ failure to report seizures to Dr. Hassan and the DOR. AH these facts show Jenkins’ knowledge of his impaired condition and, thereby, his knowledge of his danger to other motorists. It is not clear how Jenkins could believe the State was trying to rely on the “mere act of driving while in an impaired condition.” On the contrary, Jenkins’ requested instruction was inappropriate because the State did not rely on the mere act of driving while in an impaired condition. The State offered evidence of an impaired condition, plus sufficient evidence of Jenkins’ knowledge that such condition would be dangerous to others and that he disregarded such danger.
Second, Jenkins argues it was error for the trial court to refuse to give the following instruction:
“If you find that the defendant suffered from a seizure or epileptic attack at the time of the alleged commission of the offenses charged, and was therefore unable to control his actions at that time, that is an absolute defense to the charges brought against him and you must find the defendant not guilty.”
The State’s theory is that Jenkins’ criminal act occurred before the seizure — that Jenkins’ criminal actions were performed while he was in complete control. Thus, unfortunately, while in complete control, his actions were not guided by his knowledge that his actions would become out of control. He knew he could potentially lose physical control over his body because he had had seven prior collisions ah related to or caused by seizures. It is this disregard for the danger to other motorists that the State is citing as the relevant criminal act.
The State is relying on a theory in this case that Jenkins is unable or unwilling to accept. This theory is that the act of driving knowing the propensity for seizures amounts to reckless behavior. Jenkins relies on Huser to support his position that the law of Kansas does not permit the State to use this theory. Huser does not support this position. Furthermore, other jurisdictions have accepted the theory used by the State in this case.
The court in Com. v. Cheatham, 419 Pa. Super. 603, 611-12, 615 A.2d 802 (Pa. Super. 1992), Summarized the issue as follows:
“An epileptic seizure while driving and an ensuing fatal accident is an example law school textbooks use to distinguish cases in which there is no criminal culpability from those in which there is criminal responsibility. See S. Kaddish and S. Schulhofer, Criminal Law and its Processes, p. 195 (Little, Brown and Co. 1989). The case most often cited is People v. Duchenne, 2 N.Y.2d 133, 157 N.Y.S.2d 558, 138 N.E.2d 799 (1956). In that case, Duchenne killed four children when he lost control of his car during an epileptic seizure. The question before the Duchenne court was whether die evidence was sufficient to indict. Duchenne argued the state had no evidence of the mens rea required to indict for involuntary manslaughter. The New York court held that, assuming the truth of the indictment as it must on demurrer, Duchenne knew he was subject to epileptic seizures. That knowledge and the choice to drive, the court said, amounted to culpable negli gence. The court distinguished Duchenne’s behavior from that of a person for whom the seizure was unexpected. An unexpected attack, the court reasoned, is altogether different, suggesting a lack of criminal culpability. Cf. Malcolm v. Patrick, 147 So.2d 188, cert. denied 148 So.2d 278 (Fla. App. Div.1962) (tort liability depends on foreknowledge of epilepsy).
“The defining difference between the epileptic who drives with the knowledge that he or she is seizure prone and the unsuspecting epileptic who drives is choice. One chooses to take the risk; the other does not know he is taking the risk. The Pennsylvania Supreme Court defined criminal culpability in terms of choice in Commonwealth v. Hicks, 502 Pa. 344, 466 A.2d 613 (1983), as pertaining to drivers who know or should know that death is a probable consequence of their violations of die Motor Vehicle Code and who ‘should reasonably anticipate that their conduct is likely to produce death.’ ”
Because the State’s theory in this case was that Jenkins’ criminal act took place before the seizure, the district court properly left out the requested instruction on Jenkins’ purported defense.
III. EVIDENCE OF THE DEFENDANT’S PRIOR ACCIDENTS
Third, Jenkins argues the trial court erred in allowing evidence of his prior accidents. The admission of evidence lies within the sound discretion of the trial court. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999). An appellate court’s standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion. 266 Kan. at 950.
Evidence of a prior crime or civil wrong is admissible to prove his or her knowledge under K.S.A. 60-455.
This court in State v. Simkins, 269 Kan. 84, 92, 3 P.3d 1274 (2000), described the general rule governing admission of evidence under K.S.A. 60-455:
“Three requirements must be met in order to introduce evidence under K.S.A. 60-455: (1) The evidence is relevant to prove one of the facts specified in the statute; (2) the fact is a disputed, material fact; and (3) the probative value of the evidence outweighs its potential prejudice. If the requirements for admission are met, the scope of appellate review is limited to whether the trial court abused its discretion. [Citation omitted.]”
Jenkins argues evidence of the prior collisions was “clearly irrelevant.” Furthermore, Jenkins argues the prejudicial effect of the prior collisions outweighed what probative value the prior collisions could have provided. The thrust of Jenkins argument is that it was unfair to prove his behavior was reckless when he was in compliance with state licensing requirements.
The trial court did not abuse its discretion in admitting evidence of Jenkins’ prior collisions. The prior collisions were relevant because they demonstrated Jenkins’ knowledge through a pattern of accidents. The State had the burden to prove to the jury Jenkins drove realizing the imminence of danger to other motorists. See K.S.A. 21-3201(c). This burden was satisfied by proof of the prior collisions, which Jenkins admitted were caused by seizures.
Jenkins also argues that the trial court erred in failing to instruct the jury as follows:
“It is a defense to the charge made against the defendant if the defendant reasonably believed that his conduct did not constitute a crime and the defendant acted in reliance upon an official interpretation of the statutes, regulations and orders made by an agency legally authorized to interpret such statutes, regulations and orders.”
The requested instruction is based in large part on K.S.A. 21-3203(2)(d); however, it differs in one important respect from the statute, which provides in relevant part:
“(2) A person s reasonable belief that his conduct' does not constitute a crime is a defense if:
“(d) He acts in reliance upon an official interpretation of the statute, regulation or order defining the crime made by a public officer or agency legally authorized to interpret such statute.” (Emphasis added.)
As the emphasized language in the above quotation shows, the reliance must be on an interpretation of the statute defining the crime. Jenkins’ proposed instruction did not require the interpretation to be one defining the crime. The crime in the present case is involuntary manslaughter. The DOR’s issuance of a driver’s license cannot be considered to be an official interpretation of the statute defining involuntary manslaughter. On the contrary, the issuance of a driver’s license should merely be viewed as the DOR’s execution of its administrative duties as directed by Chapter 8 of the Kansas statutes. See K.S.A. 8-234a et seq. Thus, Jenldns’ proposed instruction was properly rejected by the trial court because it erroneously implied that reliance upon a DOR interpretation of licensing statute would be a sufficient defense.
Further, Jenkins was free to argue that his compliance with the licensing requirements proved that he did not realize the imminence of danger to other motorists. Indeed, this is what his counsel argued in closing arguments:
“And the Department of Revenue, they had all the copies of those six prior accidents. They had that coded into their computer as the law requires them to do. And they submitted this around to the committee, the medical review committees that look at these things and say, Guys, ladies, what do you think? And the State of Kansas said, We think he is safe to drive.
“It is hypocrisy for the State of Kansas to tell him, You may drive, in our opinion it is safe; and then the State of Kansas to come in nine years later and say, What in the world were you thinking? And yet their argument, almost 15 minutes of it, dealt solely with the 1992, the 1993, the Dr. Mandelbaum and all of that.”
Later, Jenkins’ counsel argued:
“And the State of Kansas maintains — by law they maintain their computer records, and they knew all of this, and they told Mike, You can continue to drive. And every time he submitted one of those forms, he [sic] said, You are, in our opinion, safe to drive. And it is wrong for that same State in this courtroom to come in this courtroom and say, Oops, changed our mind, send him away, put him in, second-degree murder, involuntary manslaughter, vehicular homicide, he is a bad guy.”'
In a sense, Jenkins would have this court hold that a defendant is not reckless as long as he or she holds a valid license from the State. Jenldns cites no authority for this proposition, and that is not the law. The matter of recklessness was for the jury to decide.
Most importantly, the fiction that the DOR was dealing with correct information provided by Jenkins is rejected. As the State pointed out in its brief on appeal, Jenkins did not provide the DOR with accurate information. The jury also convicted Jenkins in this case of making false information. The DOR in its March 8, 1999, letter continued Jenkins’ license “[bjased on the information pre sented.” That information, which was signed by Jenkins on February 15,1999, indicated Jenkins’ last “blackout spells, dizzy spells, epilepsy, seizures, loss or alteration of consciousness” was during November 1996. Dr. Hassan’s portion of the report confirmed Jenkins had not had an episode since November 1996, based on the information he was provided by Jenkins. During cross-examination, Jenkins admitted the information that he had not had an episode since November 1996 was false:
“Q. And when you faxed that form to Dr. Hassan’s office on March 2nd, 1999, you knew that the information contained on the front part of that form, that the last episode of blackout spells, dizzy spells, epilepsy, seizures, loss or alteration of consciousness was incorrect, didn’t you?
“A. On that date I would have, yes.
“Q. And you went ahead and you sent that form to Dr. Hassan, didn’t you?
“A. Yes.”
Jenkins cannot rely on the actions of the DOR when he was untruthful with the information he provided.
Jenkins cites no authority supporting his requested instruction. His argument that the trial court erred is rejected for the reasons cited above.
IV. MAKING FALSE INFORMATION
Jenkins argues that the State improperly charged him with the general crime of making false information in light of the more specific crime under K.S.A. 2000 Supp. 8-260(a)(5). “When there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless the legislature intended to make the general act controlling. [Citation omitted.]” State v. Kraushaar, 264 Kan. 667, 671, 957 P.2d 1106 (1998). “The general rule is that a criminal statute must be strictly construed in favor of the accused, which simply means that words are given their ordinary meaning. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. [Citation omitted.]” State v. Donlay, 253 Kan. 132, 134, 853 P.2d 680 (1993).
Jenkins contends he should have been charged with a violation of K.S.A. 2000 Supp. 8-260(a)(5), which provides:
“(a) It shall be unlawful for any person, for any purpose, to:
(5) Use a false or fictitious name in any application for a driver’s license, or any renewal or replacement thereof, or knowingly conceal a material fact, or otherwise commit a fraud in any such application.”
Jenkins was actually convicted of making false information, which is proscribed by K.S.A. 2000 Supp. 21-3711:
“Making false information is making, generating, distributing or drawing, or causing to be made, generated, distributed or drawn, any written instrument, electronic data or entry in a book of account with knowledge that such information falsely states or represents some material matter or is not what it purports to be, and with intent to defraud, obstruct the detection of a theft or felony offense or induce official action.”
The State argues that Jenkins’ conduct could not have been prosecuted under K.S.A. 2000 Supp. 8-260(a)(5) because the medical forms he completed were not an “application,” “renewal,” or “replacement thereof’ as used in that subsection. Instead, the State claims Jenkins completed the forms in connection with a restriction on his driver’s license, for which authority is found at K.S.A. 8-245(a). K.S.A. 8-245(a) provides:
“The division, upon issuing a driver’s license shall have authority, whenever good cause appears, to impose reasonable restrictions suitable to the licensee’s driving ability with respect to the type of, or special mechanical control devices required on, a motor vehicle which the licensee may operate, or such other restrictions applicable to the licensee as the division may determine to be appropriate to assure the safe operation of a motor vehicle by the licensee.”
Jenkins also argues the annual medical reports he was required to provide must have been applications or renewals based upon an interpretation of K.S.A. 2000 Supp. 8-247(e)(7), which provides that “[s]eizure disorders which are controlled shall not be considered a disability.” Jenkins quoted the statutory definition of “controlled,” leaving out a key phrase which is shown as follows by the emphasized text:
“For the purpose of this paragraph, seizure disorders which are controlled means that the licensee has not sustained a seizure involving a loss of consciousness in the waking state within six months preceding the application or renewal of a driver’s license or whenever a person licensed to practice medicine and surgery in this state makes a written report to the division stating that the licensee’s seizures are controlled.” (Emphasis added.) K.S.A. 2000 Supp. 8-247(e)(7).
Thus, Jenkins’ argument fails. The definition of “controlled” is not limited to an inquiry of whether there has been a seizure within 6 months of the application or renewal. On the contrary, “controlled” is also defined with reference to a physician’s report — a seizure can be the basis for a restriction under K.S.A. 8-245 if not controlled. The italicized language above provides further evidence that the annual medical reports do not fall within the definition of application or renewal, thus making the allegedly “more specific crime” inapplicable to Jenkins’ actions.
Since a charge under K.S.A. 2000 Supp. 8-260 would be inappropriate for this case, it was not error to convict Jenkins of making false information under K.S.A. 2000 Supp. 21-3711.
V. THE DEFENDANT’S DRIVING AND MEDICAL RECORDS
Last, Jenkins argues the trial court erred in allowing the State to use (1) the DOR’s records on Jenkins’ physical or mental condition; and (2) other medical records.
As stated above, the standard of review for admission of evidence is abuse of discretion. Lumley, 266 Kan. at 950. To the extent the analysis requires statutory interpretation, the standard of review is unlimited. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3 1149 (2000).
Jenkins first argues the trial court improperly admitted the DOR’s records pertaining to his physical or mental condition. He relies on K.S.A. 2000 Supp. 74-2012(b), which provides in relevant part: “All records of the division of vehicles relating to the physical or mental condition of any person . . . shall be confidential.” The parties have not cited and we have not found in our independent research any opinions that have interpreted K.S.A. 2000 Supp. 74-2012.
The State has three responses to the K.S.A. 2000 Supp. 74-2012 argument. First, the records belong to the DOR, not Jenkins; thus, only the DOR has standing to protest a violation of K.S.A. 2000 Supp. 74-2012. Second, the disclosure of the records was necessary to prove the commission of a felony. And third, Jenkins referred to the facts contained in the records, thus rendering the disclosure not prejudicial.
The statute requires all records relating to a person’s physical or mental condition to be confidential. K.S.A. 74-2012(b). One way of approaching this issue is to consider what the legislature meant by making the information confidential and whether the legislature meant for the Information to be both confidential and privileged. The statutory provisions for the spousal and lawyer-client privileges found at K.S.A. 60-423(b) and K.S.A. 60-426 respectively provide a “privilege” for a communication that is otherwise confidential. “Confidential” means “meant to be kept secret” or “characterized by trust and a willingness to confide in the other.” Black’s Law Dictionary 294 (7th ed. 1999). “Privilege” means a “special legal right, exemption, or immunity granted to a person or class of persons; an exception to a duty.” Black’s Law Dictionary 1215 (7th ed. 1999).
Upon further reading of the statute, it becomes clear the section is concerned with the disclosure of the information to third parties. For example, K.S.A. 2000 Supp. 74-2012(c) prohibits the selling of information, presumably to marketers. In this case, the information, while becoming public as a result of the court case, was not directly disclosed to third parties but, instead, used in a court case directly involving Jenkins.
Jenkins argues the legislature’s provision of specific exceptions to the general confidentiality rule in K.S.A. 2000 Supp. 74-2012(b) for photographs or digital images should be read to strictly prohibit this court from finding any further exceptions. While this is a strong argument, the court must also interpret a statute in such a way as to carry out the legislative intent:
“It is a general rule of construction that the courts have no authority to create, and will not create, exceptions to the provisions of a statute not made by the act itself. Where the legislature has made no exception to the positive terms of a statute, the presumption is that it intended to make none. No rule of public policy is available to create exceptions to a statutory rule. It is especially true that the power to create exceptions may not be exercised where the words of the statute are free from ambiguity.
“On the other hand, there are some cases in which exceptions to the general provisions of a statute may be implied by the courts, such as where the exceptions are necessary to give effect to the legislative intent. Of course, exceptions must appear plainly from the express words or necessary intendment of the statute.” 73 Am. Jur. 2d, Statutes § 213.
Assuming the DOR violated K.S.A. 2000 Supp. 74-2012, the remaining issue is the remedy for this case. The question becomes whether it was the legislative intent to shelter a person submitting medical forms with false information from prosecution under K.S.A. 2000 Supp. 74-2012. The State argues the information belongs to the DOR and only the DOR has standing to complain of a violation. Jenkins seems to assume any violation of K.S.A. 2000 Supp. 74-2012 requires a reversal of his conviction. Neither party cited authority to support their respective positions. “[E]rrors that do not affirmatively cause prejudice to the substantial rights of the complaining party do not require reversal when substantial justice has been done.” State v. Clark, 263 Kan. 370, 376, 949 P.2d 1099 (1997). The purpose of the confidentiality rule in K.S.A. 2000 Supp. 74-2012(b) must be to encourage the honest disclosure of medical information, not to protect a person from submitting false information. Jenkins did not have a substantial right to submit false information, and the error in admitting the records, if there was one, was harmless.
Jenkins also argues the trial court erred in admitting his medical records produced by Dr. Hassan. Jenkins concedes our state law does not prohibit the use of such records, but argues the trial court violated federal statutes and regulations. The federal law cited, 42 U.S.C. 290dd-2(a) (1994) provides in relevant part:
“(a) Requirement. Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research . . . shall . . . be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section.” (Emphasis added.)
Beyond pointing out that Dr. Hassan admitted in testimony that his clinic was a “federal medical provider” Jenkins does not explain how his involvement with Dr. Hassan was related to substance abuse; thus, the federal law appears inapplicable in this case.
However, assuming that the federal statute was applicable and that it was violated—what is the proper remedy? The Supreme Court of Montana, in a divided opinion, held that the fine contemplated in 42 U.S.C. § 4582(f) (1970), which has been transferred and replaced by 42 U.S.C. § 290dd-2(f) (1994), was the sole remedy, not suppression of the evidence:
“The fact that a remedy is provided in the legislation indicates that Congress considered the possibility of a violation and determined the appropriate remedy for that violation. If Congress had intended that suppression and dismissal were the appropriate remedies for a violation of a confidentiality it would have so provided.” State v. Magnuson, 210 Mont. 401, 408, 682 P.2d 1365 (1984).
The court did not err in admitting Jenkins’ driving and medical records.
Affirmed.
Davis, J., not participating.
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|
The opinion of the court was delivered by
Davis, J:
Robert Alexander Barrett, a 12th grade high school student at Southeast High School in Wichita, collapsed on the practice field after participating in the first mandatory football practice of the 1998 season. He died in the hospital the next day. A wrongful death action was filed, and this is an interlocutory appeal in that action by Unified School District No. 259 and the coach, Dan Johnson, from a partial summary judgment holding that the recreational use exception to the Kansas Tort Claims Act (KTCA), K.S.A. 75-6104(o), denied equal protection and was, therefore, unconstitutional as applied to the plaintiff under the facts of this case. The trial court also ruled that the discretionary function exception to the KTCA, K.S.A. 75-6104(e), was not available to the defendants “because of the existence of a mandatory duty of defendants to protect its student athletes from heat exposure.” We reverse and remand for further proceedings.
On August 17, 1998, Robert Alexander Barrett (Alex) attended the first football practice of the season at Wichita Southeast High School. This practice was mandatory and began with warmup and stretching exercises at 8 a.m. The temperature at the beginning of practice was approximately 83 degrees. The players did not wear pads; however, they did wear helmets. They were required to keep their helmets on while participating in the drills but could remove them during water breaks.
Between 8:15 a.m. and 10:15 a.m., Coach Johnson and his assistants instructed on tackling form and the fundamentals of offense and defense. Alex participated with the offensive fine under the direct supervision of Coach Johnson. Players were afforded a 5-minute water break during every 20 minutes of practice at which time they could get water from the “water ring,” a watering device that accommodated 11 players at a time or from their own jugs or bottles. There were no other rest breaks during the session.
At 10:15 a.m., a 45-minute break was held. Practice resumed at 11 a.m. at which time the temperature was higher than it had been earlier in the morning. Between 11 a.m. and 12:50 p.m., Alex continued to work with the offensive line under the direct supervision of Coach Johnson. At 12:50 p.m., circuit conditioning started which consisted of small groups working at one of five different conditioning stations manned by the coaches. A group of players would spend 4 minutes at each station, have a 2-minute rest period, and then rotate to the next station.
After the first two conditioning stations, Alex told a member of the coaching staff that he did not feel well. Assistant Coach Al Hobson instructed Alex to go to the water ring and get a drink. Coach Johnson saw Alex at the ring and shouted to see if he was okay. Alex was drinking water and did not answer. After getting a drink, Alex returned to the conditioning drills. While at Assistant Coach Fluty’s station, Alex asked and was allowed to sit out of the drill. Alex told Fluty that he was hot and tired; Fluty instructed Alex to get a drink of water.
After the conditioning drills, the team began to leave the field. Alex collapsed and was transported by ambulance to a hospital. He died the next day.
Wichita Southeast’s Athletic Director Bill Faflick distributed a “Coaches Handbook” to all coaches at the school prior to the first mandatory practice. The handbook outlined the duties and responsibilities of the coaches. On August 1, 1998, U.S.D. No. 259 distributed a memorandum to all the athletic directors of its schools on heat illness prevention which instructed them to discuss prevention with their coaches. Faflick and Coach Johnson discussed the prevention of such illnesses. The Kansas State High School Athletic Association also issued warnings regarding heat stress and the importance of gradual acclimatization to its member schools. U.S.D. No. 259 had also adopted policies that made student safety a concern and responsibility of each school’s administration, teachers, and staff.
The Action
Frances Barrett, Alex’s mother, filed suit individually and as administratrix of Alex’s estate against U.S.D. No. 259 and Coach Dan Johnson, claiming negligence and gross negligence. Barrett filed a motion for partial summary judgment alleging that the defendants were not entitled as a matter of law to rely on K.S.A. 75-6104(o), the recreational use exception to the KTCA, because its application to cases where the injury is caused by a coach’s negligence and not by a condition of the property violates equal protection under the United States Constitution and § § 1 and 2 of the Kansas Constitution Bill of Rights. She also alleged that the defendants were not entitled to immunity under the discretionary function exception to the KTCA found in K.S.A. 75-6104(e), because defendants owed a duty of care to the students. The defendants countered with their own motions for summary judgment.
Partial Summary judgment
The trial court ruled that the application of the recreational use exception under the KTCA to cases involving coaching negligence where the injury was not caused by a condition of the recreational property violated equal protection because it created a distinction between similarly situated students based solely on the location of the injury without a rational basis. The court also concluded that the discretionary function exception under the KTCA was not applicable as the school owed a general duty of care to its students, and further, had issued safety policies and guidelines which reinforced this duty of care. The trial court denied the defendants’ motions for summary judgment.
The defendants asked the trial court to certify its rulings for interlocutory appeal pursuant to K.S.A. 60-2102(b). The State of Kansas also moved to intervene and asked the trial court to certify the case for interlocutory appeal. The trial court sustained both motions. Our jurisdiction is pursuant to K.S.A. 60-2101(b), granting this court original jurisdiction as a matter of right in those cases where a statute has been held to be unconstitutional.
U.S.D. 259, Coach Dan Johnson, intervenor State of Kansas, and amici curiae League of Kansas Municipalities and Kansas Association of Defense Counsel argue that the trial court erred in finding that the recreational use exception, as applied to cases involving coaching negligence where the injury is not caused by a condition of the recreational property, violated the Equal Protection Clauses of both the Kansas and the United States Constitutions. The defendants contend that such a conclusion is not supported by the case law and further argue that a rational basis exists for treating similarly situated persons differently under the law.
Constitutionality of the Recreational Use Exception to the Kansas Tort Claims Act
Standard of Review
On appeal from a trial court’s ruling that a particular statute is unconstitutional, an appellate court applies a de novo standard of review. Battrick v. State, 267 Kan. 389, 391, 985 P.2d 707 (1999). The burden of one asserting the unconstitutionality of a particular statute is a weighty one. This is as it should be for the enacted statute is adopted through the legislative process ultimately expressing the will of the electorate in a democratic society. Thus, when approaching the review of a claim of unconstitutionality, certain basic principles of review are observed.
First, the constitutionality of a statute is presumed and all doubts must be resolved in favor of its validity. Before a statute may be stricken down the statute must clearly violate the constitution. This court’s duty is to uphold the statute under attack rather than defeat it; if there is any reasonable way to construe the statute as constitutionally valid, that should be done. Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt. State ex. rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 300, 955 P.2d 1136 (1998).
The trial court found the recreational use exception, as applied in the case at hand, violated equal protection under the United States Constitution and § § 1 and 2 of the Kansas Constitution Bill of Rights. We have interpreted § § 1 and 2 of the Kansas Constitution Bill of Rights to be counterparts to the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. See State ex rel. Tomasic v. City of Kansas City, 237 Kan. 572, Syl. ¶ 12, 701 P.2d 1314 (1985).
Equal Protection
Whether a statute violates equal protection is a question of law over which this court has unlimited review. The concept of equal protection of the law is one which “emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable.” State v. Mueller, 271 Kan. 897, Syl. ¶¶ 6 and 7, 27 P.3d 884 (2001). When a statute is attacked on equal protection grounds, the general rule is that the statute is presumed constitutional, and the burden is on the party attacking the statute to prove otherwise. Only in cases involving “suspect classifications” or “fundamental interests” is the presumption of constitutionality displaced and the burden placed on the party asserting constitutionality to demonstrate a compelling state interest which justifies the classification. Mueller, 271 Kan. 897, Syl. ¶ 7.
The trial court found in this case that K.S.A. 75-6104(o) improperly distinguished between similarly situated students based on the location of the tort. This legislative classification does not involve “suspect classifications” or “fundamental interests” and the presumption of constitutionality applies. Moreover, the rational basis level of scrutiny applies, and the classification will be upheld if it is rationally related to a legitimate legislative purpose. See Gleason v. Samaritan Home, 260 Kan. 970, 988, 926 P.2d 1349 (1996).
In State v. Mueller, we said:
“With a rational basis review, relevance is the only relationship required between the classification and the objective. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. Insofar as the objective is concerned, a statutoiy discrimination will not be set aside if any set of facts reasonably may be conceived to justify it. The legislature’s purpose in creating the classification need not be established. The classification must, however, bear a rational relationship to a legitimate objective. The rational basis test contains two substantive limitations on legislative choice: (1) legislative enactments must implicate legitimate goals, and (2) the means chosen by the legislature must bear a rational relationship to those goals. These limitations amount to a prescription that all persons similarly situated should be treated alike.” State v. Mueller, 271 Kan. 897, Syl. ¶ 8.
A statute is rationally related to an objective if the statute produces effects that advance, rather than retard or have no bearing on, the attainment of the objective. As long as the regulation is positively related to a conceivable legitimate purpose, it passes scrutiny. State ex rel. Tomasic v. Unified Gov’t of Wyandotte County/Kansas City, 165 Kan. 779, 793, 962 P.2d 543 (1998).
“ ‘The “reasonable basis” test is violated only if tire statutory classification rests on grounds wholly irrelevant to the achievement of the State’s legitimate objective. The state legislature is presumed to have acted within its constitutional power, even if the statute results in some inequality. Under the reasonable basis test, a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ ” Injured Workers of Kansas v. Franklin, 262 Kan. 840, 847, 942 P.2d 591 (1997).
K.S.A. 75-6104(o)
Under the recreational use exception to the KTCA a governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from “any claim for injuries resulting from the use of any public property intended or permitted to be used as a park, playground or open area for recreational purposes, unless the governmental entity or an employee thereof is guilty of gross and wanton negligence proximately causing such injury.” K.S.A. 75-6104(o). Immunity under K.S.A. 75-6104(o) depends on the character of the property in question and not the activity performed at any given time. The plain wording of the statute only requires that the property be intended or permitted to be used for recreational purposes, not that the injury occur as the result of recreational activity. Jackson v. U.S.D. 259, 268 Kan. 319, Syl. ¶ 6, 995 P.2d 844 (2000).
According to the plain language of the statute and our previous decisions regarding the statute, the recreational use exception applies to this case. In Nichols v. U.S.D. No. 400, 246 Kan. 93, 785 P.2d 986 (1990), a high school student at football practice was injured running from the practice field to the locker room when he stepped into a grassy waterway and stumbled. The student filed suit alleging negligent supervision. We rejected the argument that the recreational use exception should not apply to supervised activities and should apply only to a defective condition of the premises. 246 Kan. at 95-97. We held that the recreational use statute applied and that the school district was immune from liability for ordinary negligence under the facts. 246 Kan. at 95-96. See Jackson v. U.S.D. 259, 268 Kan. at 324 (summarizing Nichols as holding that “[sjchool districts are not liable for injuries which are the result of ordinary negligence and which occur on or near a football play ing field”). Similarly, in Jackson, we again rejected the contention that the recreational use exception did not apply to supervised activities or to injuries caused by negligent supervision. 268 Kan. at 332-33.
Alex died as a result of activity which occurred on a football field during football practice. His death is alleged to have resulted from negligent supervision. We conclude as we did in both Nichols and Jackson that the recreational use statute applies. Whether, however, application of the recreational use exception under K.S.A. 75-6104(o) violates the Equal Protection Clause is a question of first impression for this court.
Discussion and Analysis
The trial court, using a rational basis standard, found that the application of the statute to a case involving coaching negligence where the injury was not caused by a condition of the recreational property violated equal protection because it created a distinction between students based solely on the location of the injury. In making its finding, the trial court stated:
“It is die application of the recreational use exception to die immunity statute to the same classes of people under different life situations that creates ‘unequal treatment’ of constitutional magnitude. For example, die child injured while participating in mandatory physical classes faces proof of gross or wanton negligence if die injury occurred in the gym because the school and teacher are entitled to qualified immunity under diose circumstances. When the same child is injured in die same way under the charge of the same teacher, but that day the teacher conducted the class in the classroom, die student need only show ordinary negligence. When die science teacher wishes to illustrate principles of acceleration by launching rockets, injury to a participating child only requires a showing of ordinary negligence if the activity is done in a parking lot, but requires a showing of gross and wanton negligence if done on the football field. The student tort victim, injured on die gym floor or playing field, must prove their school and teacher guilty of gross and wanton negligence, while dieir classmates injured in the same way at the hands of the same teacher in a traditional classroom need only show ordinary negligence. The same classes of people are discriminated against solely based on die location of die tort, a distinction with no sensible difference. Such a rule creates a double standard widiout a reasonable basis, a constitutional anomaly.”
The trial court then stated that the “most stúnning, and persuasive, argument of the plaintiff’ was set out in a series of hypothetical situations which the trial court then quoted. In these hypothetical situations, a football player for Wichita South High School is injured in a game against Bishop Carroll High School due to coaching negligence. In the first hypothetical situation the game is played at Wichita South and due to the recreational use exception, the player would be unable to recover unless he shows gross and wanton negligence. In hypothetical two, however, the game is being played at Bishop Carroll, whose recreational facility is not public. Therefore, in hypothetical two, the player could recover for simple negligence. The trial court stated:
“The same actions by the same coach being held to two different standards of care dependent solely upon the actions occurring at Wichita [South] or Bishop Carroll High Schools graphically proves the operation of the recreational use exception to the Kansas Tort Claims Act treats indistinguishable students differently. In upholding such a discriminatory distinction, Kansas courts are providing less than equal protection to physical education students and student-athletes than their counterparts injured while participating in a traditional classroom. Even if the focus is on athletes, the same illogical result occurs. For example, suppose the Southeast football coach instructed his team to run on the streets of Wichita for die conditioning portion of die practice. (Track and cross-country conditioning is routinely done in that manner.) Alex’s injury happening on die streets would have left his representative with only a negligence burden of poof, ratiier than one of gross and wanton negligence because of his death occurring on die football practice field.”
The problem with the trial court’s determination is that it does not fully take into account the legitimate purpose of the legislation and whether the statute is rationally related to that purpose. We have stated:
“The purpose of K.S.A. 75-6104(o) is to provide immunity to a governmental entity when it might normally be liable for damages which are the result of ordinary negligence. This encourages governmental entities to build recreational facilities for the benefit of die public without fear diat diey will be unable to fund them because of the high cost of litigation. The benefit to die public is enormous. The public benefits from having facilities in which to play such recreational activities as basketball, softball, or football, often at a minimal cost and sometimes at no cost. The public benefits from having a place to meet with others in its community.” Jackson, 268 Kan. at 331.
Certainly, the encouragement of the building of recreational facilities for the use of the public is a legitimate purpose. The statute in question seeks to encourage the development of such facilities, and it does so by allowing those facilities immunity for simple negligence. This immunity tradeoff is a public policy decision by the legislature, which has the power to reinstate governmental immunity, subject to constitutional strictures. Brown v. Wichita State University, 219 Kan. 2, 8, 547 P.2d 1015 (1976). In Brown, we stated: “It must be conceded the legislature is better equipped to resolve the difficult policy questions inherent in the field of governmental immunity. As judges our desire to achieve what may seem fair to us as individuals cannot overcome the laws enacted by our duly elected legislators.” 219 Kan. at 9.
The trial court recognized the purpose of the statute but concluded that
“[glranting a coach and school district qualified immunity when faced with a claim based on the coach’s acts and omissions, and not on a condition of the property, does not encourage governmental entities to build recreational facilities for the benefit of the public without the fear of lawsuits. It does something more and different than that. It permits unlawful and negligent activities to occur on the recreational use property.”
The trial court’s determination is incorrect and reflects exactly the judicial usurpation of policymaking derided in Brown. The hypothetical situations reflected in the trial court’s opinion likewise fail to show that the legislation distinguishes between similarly situated persons without a rational basis.
It is true that a student in a gym is arguably similarly situated as one in a classroom. However, distinguishing between a student injured in the gym and one who is injured in the classroom is rationally related to the purpose of the statute. The school district needs little incentive to create classrooms; however, the same cannot be said of recreational facilities such as gyms and football fields. While these facilities undoubtedly enhance the educational process, they also provide value to the public as places for recreational activities. The statute encourages their development by a grant of limited governmental immunity. In a similar manner, distinguishing between a student injured by a rocket demonstration on the football field as opposed to a parking lot is rationally related to the statute in that schools on their own may develop parking lots without a statutory incentive, while they may not do so with regard to recreational facilities. The recreational facility is different from either a classroom or a parking lot in this regard, because its value to the public and to the students is different, and the potential for injury in its use, whether by student or the public and, therefore, for financially draining lawsuits, is greater. Absent a limited grant of immunity for negligence, a school district may decide not to provide recreational facilities, although it would still provide classrooms and parking lots absent such a grant. The same may be said for public streets, which was also a hypothetical used by the trial court to justify its position.
Further, the extension of the grant to supervised activities such as coaching negligence also furthers the purpose of the statute. Many activities which take place in recreational settings are supervised, whether such activities are engaged in by students or the public, and recreational activities in and of themselves provide a large potential for injuries. The legislature has determined that such an extension of immunity is necessary to encourage the development of such facilities. It cannot be said that such an extension is “ ‘wholly irrelevant to the achievement of the State’s legitimate objective.’ ” See Injured Workers of Kansas v. Franklin, 262 Kan. at 847.
As for what the trial court found to be the plaintiff s “most stunning, and persuasive” argument concerning a football player injured at either a public field or a private field, the State, as intervenor, quotes from Brown v. Wichita State University, 219 Kan. at 14, for the proposition that “withholding a legal remedy for persons injured by the state, while allowing a remedy for a non-governmental tortious activity, or a municipal government’s tortious activity, is not discriminatory government action.” This case is not on point because in the hypothetical situation, whether the negligence occurs on a public field or private field, the State is still the negligent party. However, once again, the distinction between negligence which occurs on a public field and that which occurs on a private field has a rational basis. Private schools operate under dif ferent incentive systems than public schools and their recreational facilities are generally not open to the public in the same way as those of public schools. The granting of immunity for activity at a public recreational facility which would be actionable if it occurred at a private recreational facility reasonably advances the legitimate statutory goal of encouraging the development of public recreational facilities.
The plaintiff argues that the case at hand is similar to Flax v. Kansas Turnpike Authority, 226 Kan. 1, 596 P.2d 446 (1979). In Flax, this court held that a statute which, when read broadly, granted immunity to the Kansas Turnpike Authority for negligence was a violation of equal protection as applied to the Kansas Turnpike Authority. 226 Kan. at 6-11. In so doing, the court noted that had the accident occurred on any other state highway, the State would be liable. 226 Kan. at 6-8. Flax was a 4-3 decision, with Justice McFarland, joined by Chief Justice Schroeder and Justice Fromme dissenting on the equal protection question. The dissent pointed to the above-quoted language from Brown v. Wichita State University, holding: “ ‘As judges our desire to achieve what may seem fair to üs as individuals cannot overcome the laws enacted by our duly-elected legislators.’ ” 226 Kan. at 19 (McFarland, J., dissenting).
Flax is distinguishable from the case at hand in one important respect. Throughout the case, the Kansas Turnpike Authority failed to articulate a rational basis for making a distinction between the Kansas turnpike and other state highways. The statute at issue in Flax provided immunity for all State agencies, yet this court found that the legislature clearly intended for the State to be hable for defective conditions on its highways. 226 Kan. at 8. There appeared to be no rational basis to exempt the Kansas Turnpike Authority, as an arm of the State, from the liability. Indeed, the Kansas Turnpike Authority advanced none, asserting only three possible bases: (1) the necessity to protect the state treasury; (2) allowing government to function without the threat of time and energy consuming legal actions; and (3) protection from high-risk activities. This court disregarded these bases as equally applicable to other highways in Kansas for which liability existed. 226 Kan. at 10-11.
In the case at hand, a rational basis exists for distinguishing between injuries which occur on public recreational property and those which do not, even if the same persons are involved. The classification reasonably advances the legitimate goal of encouraging the development of public recreational property. It is true that the classification is not a perfect one. However, “ ‘[W]here rationality is the test, a State “does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.” ’ ” Kimel v. Florida Board of Regents, 528 U.S. 62, 84, 145 L. Ed. 2d 522, 120 S. Ct. 631 (2000). See Brown v. Wichita State University, 219 Kan. at 13. K.S.A. 75-6104(o), as applied in this case, is rationally related to a legitimate government objective, and the trial court erred in finding that it violated the Equal Protection Clause of the United States Constitution and § § 1 and 2 of the Kansas Constitution Bill of Rights.
K.S.A. 75-6104(e)
The trial court also concluded that the discretionary function exception found in K.S.A. 75-6104(e) did not apply to provide immunity for the defendants based upon its determination that a legal duty existed on the part of school officials to supervise student-athletes and to take reasonable steps to protect their safely.
The discretionary function exception provides that a governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.” K.S.A. 75-6104(e). However, the discretionary function exception is not applicable in those situations where a legal duty exists, either by case law or by statute, which the governmental agency must follow. Nero v. Kansas State University, 253 Kan. 567, 587, 861 P.2d 768 (1993). A governmental agency cannot properly claim that its challenged action falls within the discretionary function exception where the action taken violates a legal duty. 253 Kan. at 587.
The trial court found the defendants owed a general duty of care to students under their care and were, therefore, not qualified for protection under K.S.A. 75-6104(e). See Nero v. Kansas State University, 253 Kan. 567, 587, 861 P.2d 768 (1993). The trial court based this decision on the defendant school district’s policies regarding: (1) standards and legal duties for its employees; (2) safety of student athletes; and (3) guidelines to all coaches practicing in heat and humidity. The defendants now argue that the trial court erred in finding that a school owes a general duty of care to its students and contend that no such duty of care easts.
We need not determine whether the trial court was correct in finding the defendants owed a general duty of care. The plaintiff in this case has alleged both ordinary negligence and gross and wanton negligence. As noted above, we have already determined that the recreational use exception found in K.S.A. 75-6104(o) applies in this case, which eliminates any liability of the defendants for ordinary negligence. We have previously held that the discretionary function exception under the KTCA contained in K.S.A. 75-6104(e) provides a defense against only ordinary negligence and does not apply to allegations of willful, gross, or wanton negligence. See Moran v. State, 267 Kan. 583, 596, 985 P.2d 127 (1999); Taylor v. Reno County, 242 Kan. 307, 309, 747 P.2d 100 (1987); Beck v. Kansas Adult Authority, 241 Kan. 13, 33, 735 P.2d 222 (1987); Hopkins v. State, 237 Kan. 601, 612, 702 P.2d 311 (1985). Therefore, whether or not the discretionary function exception applies, the result in this case is the same: The plaintiff cannot recover for her claim of ordinary negligence but may still advance her claim of gross and wanton negligence. As a result, it is unnecessary for us to address the applicability of K.S.A. 75-6104(e) in this case.
Based upon our decision that K.S.A. 75-6104(o) is constitutional and applies in this case, the only remaining questions involve a determination of whether the defendants’ actions amounted to gross or wanton negligence and caused the death of Alex. The decision of the trial court is reversed and the case is remanded for further proceedings.
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The opinion of the court was delivered by
Six, J.:
This K.S.A. 60-2102(b) interlocutory appeal arises from an action in legal malpractice and negligence. Plaintiff Marvin L. Canaan, on January 5,1998, filed a lawsuit against Michael Bartee and Kelly Jemigan who had been his court-appointed criminal attorneys, Allen Bush, their legal investigator, and Mary Curtis, his court-appointed criminal appellate defender. The defendants failed to respond to Canaan’s discovery requests for more than 2 years and failed to comply with two court orders to do so. The district court sanctioned defendants by granting Canaan’s motion for default judgment. The district court denied the defendants’ motion to set aside the default judgment and granted defendants’ request to certify the denial for interlocutory appeal.
Our jurisdiction is under K.S.A. 20-3018(c), a transfer on our order from the Court of Appeals.
The question is whether the district court abused its discretion by denying the defendants’ motion to set aside the default judgment.
Our answer is “yes.” We reverse and remand.
FACTS
In January 1995, Bartee and Jemigan were appointed by the Johnson County Public Defender’s Office to defend Canaan. Bush, a legal investigator for the Public Defender’s Office, assisted Bartee and Jernigan in preparing Canaan’s defense. Canaan was convicted of premeditated first-degree murder, aggravated robbery, and aggravated battery. Before sentencing, he moved for a new trial alleging ineffective assistance of counsel. The district court denied the motion.
Bartee filed Canaan’s notice of appeal. Curtis was appointed to represent Canaan in his appeal. She withdrew after Canaan sued her for legal malpractice. We affirmed Canaan’s criminal convictions. See State v. Canaan, 265 Kan. 835, 964 P.2d 681 (1998).
In December 1997, Canaan filed a pro se petition (Case No. 97C16801) against Bartee, Curtis, Assistant District Attorney Steven Obermeier, and the State of Kansas. Canaan alleged various forms of relief generally designed to facilitate his ability to pursue his rights on direct appeal, including prosecutorial misconduct and resulting emotional distress. Obermeier was counsel for the State on Canaan’s direct appeal. Canaan filed a second pro se lawsuit (Case No. 98C102) against defendants Bartee, Jemigan, Bush, and Curtis, and the Johnson County Public Defender’s Office.
The second case alleged various claims, including legal malpractice, fraud, breach of contract, breach of warranty, and violation of the Kansas Consumer Protection Act. The two cases were consolidated. The district court dismissed Obermeier from the case, noting that he had prosecutorial immunity. Canaan claimed various injuries and sought damages in excess of $50,000 contending in part that (1) he was “provably innocent” and “wrongfully convicted,” (2) Bartee, Jernigan, and Bush failed to appropriately pre pare for his defense, (3) Bartee and Jernigan failed to appropriately conduct his trial, and (4) Curtis failed to appropriately handle his criminal appeal.
Upon receiving service of the pleadings, Bartee, Bush, and Curtis exercised their statutory right by requesting legal representation through the Kansas Attorney General’s office. See K.S.A. 75-6108 (defense of governmental employees). Assistant Attorney General James Coder was assigned to handle the case for the defendants. Jernigan was not served with the pleadings. However, he received a letter from the Board of Indigent Defense Services notifying him of Canaan’s lawsuit and requesting that he also use Coder as his counsel. Jernigan authorized Coder to handle his defense.
In January 1998, Coder filed an answer for the defendants, asserting the affirmative defense of failure to state a claim upon which relief could be granted. The issue regarding Jemigan’s lack of service of process was not raised. Coder also reserved any other affirmative defenses uncovered during discovery.
Throughout 1998 and 1999, Coder did not contact the defendants regarding the suit. The district court also found that the defendants had not attempted to contact Coder to check on the status of the case. Each defendant presumed, based on experience with pro se prison inmate cases, that Canaan’s lawsuit had been dismissed.
In January and February 1998, Canaan served the defendants with various written discovery requests. On February 18, 1998, having not received any responses to his requests for admissions, Canaan filed a motion to compel discovery. On August 5,1998, the district court held a telephone case management conference. Coder said that he had never received any of Canaan’s discovery requests. Canaan was directed to send another copy to Coder, which he did. The district court also ordered the defendants to respond to the discovery requests. Apparently Coder failed to inform his clients of the discovery requests.
The district court set another telephone case management conference for October 23, 1998, and directed Coder to make the necessary arrangements. In anticipation of the conference, Canaan filed another motion to compel discovery. On November 30,1998, Canaan filed a motion for default judgment. Coder did not reply to either motion. The district court was prepared to have the telephone conference on October 23, but Coder failed to arrange the conference. He also failed to return phone calls from the district court’s staff attempting to reschedule the hearing.
In October 1999, 11 months after Canaan filed his motion for default judgment, the district court set another case management conference for November 5,1999, and ordered Coder to make the arrangements. The district court’s written order specifically said that Canaan’s motion for sanctions would be considered at the November 5 conference. Copies of the order were sent to both Coder and Kansas Attorney General Carla Stovall. At the November 5 hearing, Coder said that the entire file containing information about Canaan’s lawsuit had been lost. Coder had no recollection of having received the discovery requests. He said that after receiving the district court’s October 12 order, he had made one attempt to look at the court file. However, he had arrived at the courthouse “right at the end of the day” and was unable to obtain the file.
The district court: (1) granted Canaan’s request for sanctions but took under advisement what the sanctions would be, (2) noted that the existence of extensive outstanding discovery requests was discussed in detail at the August 5, 1998, case management conference, (3) concluded, based on proof of mailing on a prison form, that Canaan’s discovery requests were re-served as directed, (4) observed that Coder had done nothing to respond to the requests, (5) for the second time, ordered the defendants to provide full and complete responses to Canaan’s discovery requests, giving them until December 5, 1999, to do so, (6) gave Coder the opportunity to file a motion to set aside Canaan’s requests for admissions, and (7) scheduled a hearing for January 7, 2000, for the purpose of •hearing arguments regarding sanctions and Canaan’s motion for default judgment.
On December 6,1999, Coder filed for a 21-day extension of the December 5,1999, deadline for complying with the district court’s order to respond to the outstanding discovery requests. The district court informed Coder that it did not grant extensions of time ex parte and that he would either need to set the motion for hearing or obtain the agreement of Canaan. Coder neither requested a hearing nor contacted Canaan about the proposed extension. Then, the hearing that had been set for January 7, 2000, was postponed until January 20, 2000, because Coder apparently fell ill just as the January 7 conference call was to have begun. At the January 20 telephone conference, Coder reported that the defendants still had not responded to any of the outstanding discovery requests. Coder said that he had mailed the requests to his clients on November 18, 1999, but the requests had not been received until sometime during the week of January 10, 2000. (The postmark on Coder’s November 18, 1999, letter to Bartee was January 10, 2000.) Jernigan apparently never received the requests.
The district court mailed copies of Kansas and federal cases containing standards that would be applied in determining the appropriate sanctions to Coder and Canaan and gave them the opportunity to file briefs. According to the district court, both Canaan and Coder filed briefs by the January 31, 2000, deadline. The defendants dispute this, arguing that Coder did not file a brief. They contend Coder only filed a motion for summary judgment with a memorandum in support, in which he asserted that Canaan’s claims were insufficient. However, the district court’s February 14, 2000, memorandum decision notes that the defendants filed a brief. These briefs are not in the record on appeal, nor are they listed on the civil appearance docket sheet.
The district court observed that before filing their brief, the defendants had never contended that the discovery requests served by Canaan lacked relevance to the suit. The court found: “We decline, given the lack of clear legal authority in Kansas and the failure of defendants to object to the discovery on relevance grounds for two years, to hold that the discovery sought by Canaan was irrelevant.” The district court entered a default judgment on both consolidated cases as a sanction. The Attorney General’s office notified the defendants of the default judgment entered against them.
On March 9, 2000, the defendants, having retained new counsel, filed a motion to set aside the default judgment. The defendants asserted that their culpability, if any, was excusable based on the alleged active concealment perpetrated on them by Coder. They argued that Coder failed to communicate with them. The district court acknowledged that the defendants presented new information “confirming the gross negligence of their counsel.” However, the district court found it improper to set aside a default when “uncontroverted evidence also shows the defendants themselves were not diligent in following the suit or in bringing their counsel’s failure to the Court’s attention.” The district court reasoned that to grant the defendants’ motion “would reward their willful neglect of this lawsuit.” On December 21, 2000, the district court granted the defendants’ request to certify its decision for interlocutory appeal.
DISCUSSION
The certified question on interlocutory appeal is “[w]hether, as a matter of law under K.S.A. 60-260(b) and Kansas Supreme Court precedent, the court abused its discretion in denying the motion to set aside default judgment under the circumstances present in this case.”
A preliminary inquiry is whether the district court abused its discretion by imposing a default judgment as a discovery sanction. The defendants answer the inquiry in the affirmative, focusing on the court’s failure to consider or impose lesser sanctions to achieve the objectives of discovery. Canaan counters that the default judgment was an appropriate sanction. The defendants’ contention has merit.
Default Judgment Where No Lesser Sanctions Were Imposed
The imposition of sanctions for failure to comply with discovery orders is a matter within the sound discretion of the district court. The decision to impose sanctions will not be overturned unless that discretion has been abused. Shay v. State Dept. of Transportation, 265 Kan. 191, 194, 959 P.2d 849 (1998).
Where the evidence shows that a party has acted in deliberate disregard of reasonable and necessary court orders and the party is afforded a hearing and an opportunity to offer evidence of ex cusable neglect, the imposition of a stringent sanction will not be disturbed. 265 Kan. at 194. However, we have said: “Where the party failed to comply due to inability to do so rather than bad faith, a severe sanction such as dismissal or default probably would be inappropriate.” Hawkins v. Dennis, 258 Kan. 329, 341, 905 P.2d 678 (1995). See also Vickers v. City of Kansas City, 216 Kan. 84, Syl. ¶ 7, 95, 531 P.2d 113 (1975) (reversing dismissal for violation of a discoveiy order where the documents did not go to a dispositive issue and the appellant made a good faith effort to comply with the court’s order).
The defendants argue that they were not “afforded” a hearing before the default judgment sanction was imposed because they personally were not “informed” of the hearings. However, they do not dispute that their attorney was informed and present at the hearings.
K.S.A. 2000 Supp. 60-237(b)(2)(A)-(E) provides sanctions to be imposed where a party has not complied with discovery orders. In Binyon v. Nesseth, 231 Kan. 381, 383, 646 P.2d 1043 (1982), superceded by statute on other grounds as stated in Smith v. Printup, 262 Kan. 587, 596-97, 938 P.2d 1261 (1997), we observed, “Both Kansas appellate courts have recognized the severity of judgment by default as a sanction for failure to comply with discovery orders, and each court has emphasized the importance of careful exercise of judicial discretion before imposition of that sanction.” We have held in reviewing severe sanctions from a plaintiff s perspective that dismissal of a lawsuit should only be used as a last resort when other lesser sanctions are clearly insufficient to accomplish the desired end. Burkhart v. Philsco Products Co., 241 Kan. 562, 576-77, 738 P.2d 433 (1987).
We have identified the following tests in determining whether the district court has abused its discretion in granting default judgment for failure to comply with discovery orders: (1) Does the discoverable material go to a dispositive issue in the case? (2) Are alternative sanctions sufficient to protect the party seeking discovery available? and (3) Is the requested information merely cumulative or corroborative? Hawkins, 258 Kan. at 341. See also Wenger v. Wenger, 239 Kan. 56, 57-58, 716 P.2d 550 (1986) (counterclaims dismissed and default judgment entered for continued failure to make discovery); Binyon, 231 Kan. at 383-84 (default judgment entered after repeated unsuccessful attempts to force defendant to comply with discovery orders).
At issue here is whether alternative sanctions sufficient to protect Canaan were available. See Hawkins, 258 Kan. at 341. The defendants argue that the district court disregarded the varying degrees of sanctioning available in K.S.A. 2000 Supp. 60-237 when it granted Canaan’s motion for default judgment. They correctly assert that generally the sanction should be designed to accomplish the objects of discovery rather than for the purpose of punishment. See Hawkins, 258 Kan. at 341. We have said: “ ‘Most of the cases in which a dismissal or a default judgment have been held proper sanctions involve parties who refuse or fail to follow a discovery order.’ ” Wallace, Saunders, Austin, Brown & Enochs, Chtd. v. Louisburg Grain Co., 250 Kan. 54, 63, 824 P.2d 933 (1992).
There is no transcript of the January 20, 2000, sanctions telephone conference in the record on appeal. However, the district court issued an extensive memorandum opinion, concluding that a default judgment was the appropriate sanction. Although the district judge did not specify why lesser sanctions would not be appropriate, he did say: “On the record found here, the Court concludes that lesser sanctions would not be effective.”
The district court reasoned that the defendants were “on notice” that Canaan was seeking default judgment. According to the district judge, notice was evidenced by (1) Canaan’s motion for default judgment filed November 30, 1998, (2) the November 5, 1999, hearing (the court granted Canaan’s motion for sanctions but took under advisement which sanction would be entered, specifically saying that default judgment was one of the possible sanctions), and (3) the follow-up order of November 12,1999 (the defendants were ordered to respond to discovery requests by December 5, 1999).
Later, at the hearing to set aside the default judgment, the district court was made aware that Coder and the Attorney General’s office failed to communicate with the defendants until notification of the default.
The defendants rely on Shay v. Kansas Dept. of Transportation, 265 Kan. 191, 959 P.2d 849 (1998), to support their contention that default judgment was an inappropriate sanction here because Coder did not notify his clients of the sanctions entered against them or of the district court’s plan to proceed with the imposition of sanctions. In Shay, the plaintiff appealed the dismissal of his eminent domain case with prejudice for failure to provide discovery. At a hearing on the Department of Transportation’s motion to dismiss, Shay’s attorney told the court that he would comply with the discovery order within the next 7 days. The district court found that Shay had failed to protect his interests and had not complied with the discovery order. On appeal, we said that dismissal of a case should only be used as a last resort when other lesser sanctions are clearly insufficient to accomplish the desired end. 265 Kan. at 194 (citing Burkhart, 241 Kan. at 576-77). We also found that there was no indication that the district court had considered any sanction less severe than dismissal and concluded that the ultimate sanction was “clearly unwarranted” under the facts of the case. 265 Kan. at 196.
In Burkhart, 241 Kan. at 578, we found that the district court abused its discretion by granting a dismissal, in part because less drastic sanctions could have been effectively used. We commented: “The court’s frustration with counsel is readily understandable and sanctions directed to counsel rather than the plaintiff may have been entirely appropriate.” 241 Kan. at 579. See also Webb v. District of Columbia, 146 F.3d 964, 975-76 (D.C. Cir. 1998) (finding an abuse of discretion where the court failed to consider lesser sanctions).
The district court here was understandably frustrated with Coder’s actions (or inactions) and excuses. At the November 5, 1999, telephone conference, Coder said: (1) he had no recollection of ever having received any discovery requests from Canaan, (2) he had a caseload of between 150 and 200 inmate cases, and (3) the case file was misfiled in the Attorney General’s office and was apparently missing for several months. When the district court asked Coder if he had notified his clients about the lost file and about the pending default judgment motion, Coder simply an swered, “I had never seen a motion for a default judgment, Your Honor.”
An example of Coder s disrespect for the judicial process is described by the district judge’s bench comments following Coder’s failure to coordinate a previous case management conference:
“As I’ve already noted, that second conference did not occur because it was not set up by Mr. Coder, and we were unable to get Mr. Coder to return our phone calls thereafter. A motion for sanctions was filed in both cases and notes the failure to respond to discoveiy. I believe that it is clearly an egregious thumbing of the nose toward the legal process for the [Attorney General’s office] to refuse to respond to this discovery for more than a year after its initial service and indeed its re-service.”
Here, as in Shay and Burkhart, lesser sanctions could have been imposed. Granting a default judgment should only be used as a last resort. The district court issued no lesser sanctions and none against Coder. The district court, in its February 14, 2000 order, addressed its failure to employ lesser sanctions by stating that it had made clear at the November 5, 1999, hearing that default was a potential sanction. Citing Settle v. Brim, 182 F.R.D. 635, 638 (D. N.M.), aff'd 162 F.3d 1174 (10th Cir. 1998), the court said that the defendants had been under threat of default but had still not complied, so default was justified. The district court’s statement was grounded in part on two false statements by Coder. Coder said that he had sent the November 12, 1999, written order to the parties and that he had sent the discovery requests to the parties, and they had not responded.
The motion to set aside the default judgment corrected those misrepresentations and explained that Coder never sent the November 12, 1999, written order to his clients. He had simply lied to the court. Also, the district court learned that certain defendants, upon receiving Coder’s November 18, 1999, correspondence on January 11, 2000, made attempts to contact Coder. Coder uniformly ignored the requests for information while lying to the court that he had received no response from his clients.
The district court acknowledged the material false statements from Coder: “In truth, Mr. Coder apparently never notified his clients of the sanctions entered against them or the Court’s plan to proceed with their imposition. In fact, there appears to have been no communication [until notification of the default].” The district court also had acknowledged in the November 12, 1999, order that Coder’s activities had violated the “substantive rights” of his clients. The district court knew Coder was failing both his clients and the court for some time leading up to the issuance of the default judgment. Characterizing Coder’s professional neglect as “gross negligence,” the district court imposed no lesser sanction along the way. Failure to utilize lesser sanctions before entering the ultimate sanction of default judgment qualifies as an abuse of discretion under the circumstances presented here.
Relief under K.S.A. 60-260(b)
The defendants argued below that the district court should have set aside the default judgment under K.S.A. 60-260(b)(l) or (6). K.S.A. 60-260(b) provides relief from judgment under certain circumstances:
“On motion and upon such terms as are just, the court may relieve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... or (6) any other reason justifying relief from the operation of the judgment.”
In considering whether to set aside a default judgment, the district court should consider (1) whether the nondefaulting party will be prejudiced, (2) whether the defaulting party has a meritorious defense, and (3) whether the default was the result of excusable neglect. Jenkins v. Arnold, 223 Kan. 298, 300, 573 P.2d 1013 (1978).
Here, the district court noted that “the defaulting party must show the existence of all three of these elements” and that the “failure to meet the third element would, by itself, require denial of the motion [to set aside the judgment].” The court found that the default judgment here resulted from both inexcusable neglect and from willful acts of the defendants; thus, it concluded that either of those factors alone required denial of defendants’ motion to set aside the default judgment.
The defendants assert that any culpability on their part was excusable neglect, given the alleged “unconscionable failures and active concealment of legal counsel.” In Bartee’s affidavit, he said he tried to call Coder after receiving the discovery request in the mail in January 2000, but Coder did not call him back or contact him about a hearing regarding sanctions. Bartee also said that he received a motion in support of sanctions filed by Canaan on January 31, 2000. Bartee, again, called Coder’s office, but Coder did not return his call.
In Bush’s affidavit, he said that he tried to call Coder after receiving the discovery request in the mail in mid-January 2000. He left two messages with Coder’s office, but his calls were not returned. Bush said he was not informed of a November 1999 hearing or that sanctions were going to be imposed for failure to respond to discovery requests. In addition, he was not informed of a hearing on the consideration of appropriate sanctions.
In Curtis’ affidavit, she said that she received Coder’s November 18, 1999, letter concerning the discovery request on January 12, 2000, a date long-past the December 5, 1999, deadline. She said the only other communication occurred when Coder called her to tell her of the February 14, 2000, default judgment decision. She did not state that she had tried to call Coder.
In Jernigan’s affidavit, he said that he had received a form authorizing the “Attorney General” to represent him. After that, he never heard anything more from the Attorney General’s office about the case. The first information he received about the lawsuit was on February 21, 2000, when the Attorney General’s office called him to inform him that a default judgment had been entered against him.
In its memorandum decision, the district court noted:
"In truth, Mr. Coder apparently never notified his clients of the sanctions entered against them or the Court’s plan to proceed with their imposition. In fact, there appears to have been no further communication between the Attorney Generals’ Office and defendants Bartee, Bush, and Curtis until each was contacted by Coder or John Dowell, also of the Kansas Attorney General’s Office, and informed of this Court’s February 14,2000, decision entering default judgment against them.”
However, the district court found that Bartee, Bush, and Curtis had notice that “something was amiss” when in January 2000 they received the letter dated November 18, 1999, which listed a December 5, 1999, deadline for responding to Canaan’s discovery requests. In the letter, Coder told his clients that the discovery requests had “gotten misfiled” with “yet other frivolous lawsuits” and that he would “try to get an extension” if the defendants were unable to respond by the December 5 deadline. The letter failed to mention pending sanctions. The defendants heard nothing else regarding the case until the default judgment, except that Bartee on January 31,2000, received a motion in support of sanctions filed by Canaan. The file-stamped copy was apparently placed in the clerk’s office box for the Public Defender’s Office and distributed to Bartee. The district court found that the defendants took no steps to comply or to* “adequately protect their own legal interests.”
The district court also found that, unlike the other three defendants, Jemigan never received Coder’s belated November 18, 1999, letter. The court pointed out that Jemigan made no attempts to contact Coder, the Attorney General’s office, or the court to check on the status of the litigation pending against him.
Excusable Neglect
The district court correctly said that the party claiming excusable neglect has the burden to plead and prove it. See Lee v. Brown, 210 Kan. 168, 170, 499 P.2d 1076 (1972). The court observed that the issue of whether a party’s conduct constitutes excusable neglect should be decided on a case-by-case basis, and consideration should be given to whether the party’s conduct reflects neglectful indifference or reckless indifference. Reliance Insurance Companies v. Thompson-Hayward Chemical Co., 214 Kan. 110, 116-17, 519 P.2d 730 (1974). See Mid Kansas Fed’l Savings & Loan Ass’n v. Burke, 233 Kan. 796, 798-99, 666 P.2d 203 (1983).
Canaan contends that the defendants’ alleged “willful refusal” to participate in the proceedings failed to constitute excusable neglect and, thus, prohibited setting aside the default judgment. He reasons that all of the defendants knew they had been sued and were capable of monitoring the proceedings. Asserting that the defendants had a duty to “act with diligence” to ensure that their interests were protected, Canaan argues that the 2-year absence of communications from Coder should have alerted the defendants of problems in the lawsuit. It appears that the district court agreed with Canaan’s reasoning.
Canaan also asserts that the defendants still refuse to comply with discovery requests. However, the record shows that in March and April 2000, Canaan’s criminal case file was made available to him. A letter dated May 14, 2000, confirmed that Canaan had received and/or had access to all of the materials sought from his criminal case. Thus, this part of the discovery has been completed. In addition, the civil appearance docket shows that on March 15, 2000, defendant Bush filed answers to Canaan’s interrogatories and responses to Canaan’s request for admissions for specific facts. It also appears that discovery responses relating to the motion to set aside default were provided.
The district court found: “Coder showed a blatant disregard for this Court and its procedures, offering a variety of excuses for his conduct along the way. His inaction led to sanctions directly against the defendants, and he is primarily responsible for the result.” However, citing In re Fitzimmons, 920 F.2d 1468 (9th Cir. 1990), the district court concluded that “blaming egregious failures to comply with discovery on counsel is usually not sufficient to avoid even the most severe sanctions.”
The district court found that the acts or omissions of an attorney are ordinarily attributed to the client. Thus, in determining whether excusable neglect was present, the court observed that it was proper to focus on “whether the neglect of the moving party together with that party’s counsel was excusable.” The defendants agree that the relationship between a client arid an attorney is one of agency. See Pearcy v. First National Bank, 167 Kan. 696, 698, 208 P.2d 217 (1949). However, they argue that any presumption that he or she is acting with the client’s authority can be countered with a showing to the contrary. See Meyer v. Meyer, 209 Kan. 31, 39, 495 P.2d 942 (1972) (“Where an attorney at law appears for another it will be presumed, in the absence of a showing to the contrary, that he had authority to appear.”).
Discovery Delay Due to Attorney Conduct
Kansas courts have not previously established whether the misconduct of an attorney alone in failing to respond to discovery requests warrants a default judgment sanction. The law in this area is unsettled.
As previously mentioned, in Burkhart, 241 Kan. at 578, we reversed the district court’s dismissal as a discovery sanction due to the conduct of the plaintiff s counsel. The plaintiff suffered severe injuries, including the loss of sight in one eye and permanent brain damage. He was then incapacitated, and the action was filed for him by his legally appointed conservator. We observed that the discoverable materials, expert reports, could have been obtained through the use of lesser sanctions than dismissal. 241 Kan. at 578.
Regarding the analysis of whether a party has failed to comply with discovery due to inability or due to willfulness or bad faith, we said:
“Most of the cases in which a dismissal or a default judgment have been held proper sanctions involve parties who refuse or fail to follow a discovery order. Here, plaintiff is an incapacitated person without ability to control any stage of the proceedings or to assist or direct his attorney. To deprive plaintiff of his day in court for the actions of his attorney, when other lesser sanctions may have been sufficient, constitutes an abuse of the trial court’s discretion.
"... The court’s frustration with counsel is readily understandable and sanctions directed to counsel rather than the plaintiff may have been entirely appropriate.” (Emphasis added.) 241 Kan. at 578-79.
In Binyon v. Nesseth, 231 Kan. 381, 646 P.2d 1043 (1982), superceded by statute on other grounds as stated in Smith v. Printup, 262 Kan. 587, 596-97, 938 P.2d 1261 (1997), we affirmed a default judgment sanction after finding that the defendant engaged in willful and deliberate disregard of court orders. In addition, before granting the default judgment, other sanctions had been imposed upon the defendant. 231 Kan. at 384.
The Court of Appeals upheld default and dismissal sanctions in two cases where the parties themselves contributed to the discovery delay. See Mansfield Painting & Decorating v. Budlaw Services, Inc., 3 Kan. App. 2d 77, 81-82, 589 P.2d 643 (1979) (evidence demonstrated a deliberate course of delay by the defendants and that no other effective sanctions were available); Fields v. Stauffer Publications, Inc., 2 Kan. App. 2d 323, 330, 578 P.2d 1138 (1978) (plaintiff consistently and willfully refused to answer questions posed to him during depositions in a libel claim against a newspaper). The Fields court noted the well-established rule that the “the dismissal of a cause of action is a drastic remedy to impose as a discovery sanction and should be used only in extreme circumstances.” 2 Kan. App. 2d at 328 (citing Vickers v. City of Kansas City, 216 Kan. 84, 531 P.2d 113 [1975]).
In contrast, Montez v. Tonkawa Village Apartments, 215 Kan. 59, 523 P.2d 351 (1974), involved discovery sanctions due solely to the defense counsel’s conduct. We reversed the district court’s refusal to set aside a default judgment, finding that the default unduly penalized the party for the actions of legal counsel. 215 Kan. at 65. Here, the district court distinguished Montez, noting that in Montez, the parties’ own conduct did not constitute inexcusable neglect. Also, none of the principals in Montez had any actual knowledge of the suit and could not be charged with neglect of any kind.
The district court here relied primarily upon federal court cases in denying the defendants’ request to set aside the default judgment. First, the court cited Inryco, Inc. v. Metropolitan Engineering Co., Inc., 708 F.2d 1225, 1234 (7th Cir.), cert. denied 464 U.S. 937 (1983) (despite having knowledge of suit, defendants contacted attorney fewer than a half a dozen times, had virtually no contact with attorney for more than a year, and at no time during the 20 months between the filing of complaint and the entry of default judgment knew the precise procedural status of the case; attorney misconduct imputed to defendants).
The district court also cited: S.E.C. v. McNulty, 137 F.3d 732, 740 (2nd Cir.), cert. denied sub nom. Shanklin v. S.E.C., 525 U.S. 931 (1998) (affirming a finding that excusable neglect had not been shown when a default was granted due to an attorney’s inaction, but the defaulting party made no attempt to contact his attorney over an 11-month period); Harmon v. CSX Transportation, Inc., 110 F.3d 364, 368-69 (6th Cir.), cert. denied 522 U.S. 868 (1997) (dismissal warranted, despite no consideration of lesser sanctions, where attorney’s conduct was “contumacious”); Florida Physician’s Ins. Co., Inc. v. Ehlers, 8 F.3d 780, 784 (11th Cir. 1993) (finding plaintiff made extensive efforts to notify defendant and finding that defendant had a duty to act with some diligence to ensure that his attorney was protecting his interests); Comiskey v. JFTJ Corp., 989 F.2d 1007, 1010 (8th Cir. 1993) (“ ‘A [party] chooses counsel at his [or her] peril’ ’’and “ ‘Counsel’s disregard of his [or her] professional responsibilities can lead to extinction of his [or her] client’s claims.’ ”); Damiani v. Rhode Island Hosp., 704 F.2d 12, 16 (1st Cir. 1983) (“The argument that the sins of the attorney should not be visited on the client is a seductive one, but its siren call is overborne by the nature of the adversary system.”); Jones v. Estelle, 693 F.2d 547, 549 (5th Cir. 1982), cert. denied 460 U.S. 1072 (1983) (failure to file a timely notice of appeal; court found that there is an implicit burden on the party to make periodic inquiries into the course of the proceedings); Ake v. Mini Vacations, Inc., 174 F.R.D. 110, 112-13 (M.D. Fla. 1997) (finding client has duty to monitor the progress of the case and to communicate with his attorney and also finding no meritorious claim); Tisdale by and through Tisdale v. Darkis, 101 F.R.D. 307, 309-10 (D. Kan. 1984) (imposing dismissal sanction where failure to comply was the sole fault of counsel and counsel’s conduct could only be characterized as a “gross dereliction of his professional responsibilities”); In re Folger, 149 Bankr. 183, 185-87 (Bankr. D. Kan. 1992) (debtors in bankruptcy, who failed to inform their attorney of their change of address and failed to communicate with him by any other means, unsuccessfully argued that they had no obligation to keep in contact with their counsel despite the efforts of their attorney to contact them). Compare Starlight Intern., Inc. v. Herlihy, 190 F.R.D. 587, 594-95 (D. Kan. 1999) (repetitive failure to comply with discovery orders resulted in a monetary sanction for numerous instances of misconduct attributable to counsel and clients, and the court imposed a substantial penalty on counsel for its part in the misconduct).
A counterbalance to the cited federal decisions is found in state court precedent. We observe that other state courts have held that default judgments should be set aside when the discovety sanction can be linked to the misconduct of legal counsel. See e.g., Wayne Cook Enterprises, Inc. v. Fain Properties, 196 Ariz. 146, 149, 993 P.2d 1110 (1999), held that the party, not solely counsel, must have obstructed the discovery process. It also noted that the district court must have considered and rejected lesser sanctions as a penalty before the sanction of dismissal is warranted in a case.
In Walicki v. Waste Management, Inc., 703 So. 2d 1095 (Fla. App. 1997), the record showed 7 years of dilatory conduct on the part of plaintiff s counsel. The Walicki court found that it was an abuse of discretion to dismiss the complaint as a sanction based solely on the attorney’s noncompliance with a court-imposed deadline. Walicki observed that the record
“does not show that appellant personally contributed to the delayed filing or the protracted course of this litigation. Appellant should not be made to suffer the loss of viable claims due to her attorney’s malfeasance where there is no evidence in the record to indicate that she personally engaged in misconduct.” 703 So. 2d at 1096.
See also Lovato v. Sante Fe Internat. Corp., 151 Cal. App. 3d 549, 555, 198 Cal. Rptr. 838 (1984) (reversing a default judgment where the conduct of the attorney, who long after he had been suspended and fired by defendant accepted interrogatories on defendant’s behalf, who never told plaintiff he had been suspended, and who never told defendant about interrogatories or motions ultimately for sanctions and default, constituted extrinsic fraud); Horton v. McCary, 635 So. 2d 199, 203-04 (La. 1994) (reversing the judgment as discovery sanction to determine if the litigants were victims of their legal counsel).
Here, the district court was aware that Coder was failing his obligations as legal counsel. It ordered that Attorney General Stovall be notified of the November 5, 1999, hearing, saying: “[W]e have tried to let the Attorney General’s Office know that this was a serious matter.” At the hearing on the motion to set aside the default judgment, the court noted that the Attorney General’s office had referred Coder to the Kansas Disciplinary Administrator for ethical violations relating to his conduct in this case and that he was no longer employed by the Attorney General. See In re Coder, No. 87,392, filed this date.
The defendants were employed by the State to assist indigent persons facing criminal charges. The legislature, by statute, K.S.A. 75-6108, placed the responsibility of representing defendants with the Attorney General of Kansas. Coder, as assigned counsel, totally abandoned his clients. His conduct as an officer of the court is so egregious that it permeates this entire record. The foul professional odor that arises from his representation supports our excusable neglect finding under K.S.A. 60-260(b)(l). Under the facts here, the district court abused its discretion in not setting aside the default judgment.
The defendants argued below that the gross negligence and active concealment of Coder constituted “[anjother reason justifying relief from judgment” under K.S.A. 60-260(b)(6). Because of our holding under K.S.A. 60-260(b)(l), we need not reach the 60-260(b)(6) contention.
Meritorious Defense
The defendants also assert that they had a meritorious defense. In their answer to Canaan’s petition, the defense of failure to state a claim upon which relief could be granted was asserted. Defendants also reserved any other affirmative defenses uncovered during discovery. In their motion to set aside the default judgment, the defendants raised the statute of limitations, collateral estoppel, res judicata, and mootness. Canaan argues that the defenses raised in the motion were untimely, since they were not raised in the answer.
Counsel for defendants, under Rule 6.09(b) (2000 Kan. Ct. R. Annot. 41), have submitted as additional authority the recent case Coscia v. McKenna & Cuneo, 25 Cal. 4th 1194, 108 Cal. Rptr.2d 471, 25 P.3d 670 (2001). In Coscia, the California Supreme Court conducted a detailed analysis of legal malpractice claims filed by convicted felons against criminal defense counsel. Coscia held “[tjhat exoneration by postconviction relief is a prerequisite to recovery for legal malpractice arising out of a criminal proceeding.” 25 Cal. 4th at 1199.
Because of the district court’s finding here that no good cause to set aside the default judgment was shown, the district court did not address the issue of whether a meritorious defense was raised by the defendants. Thus, as Canaan’s counsel responded at oral argument, that question and the impact of Coscia on the final disposition of this case are not now before us.
The district court’s decision denying the defendants’ motion to set aside the default judgment is reversed, and the case is remanded for further proceedings. | [
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The opinion of the court was delivered by
Six, J.:
This first impression medical malpractice action arises from the pregnancy of Bonnie Nold and the later birth of her daughter Audra Nold. Joseph and Bonnie Nold, Audra’s parents, on her behalf, alleged that certain physicians and a hospital were negligent in their care and treatment of Bonnie and Audra. We consider, in a managed care environment, the duty owed by the mother’s physicians and the delivery hospital to the baby of a mother who intends to carry the fetus to term. We also consider the reporting responsibilities of physicians whose pregnant patient tests positive for hepatitis B.
Bonnie is not asserting a personal claim for damages. The jury returned a verdict for Audra and awarded damages totaling $800,000, apportioning negligence as follows: Dr. Scott Moser, 90 percent; Dr. James Donnell, 6 percent; Dr. Michael Brown, 2 percent; and Dr. Kemie Binyon, 2 percent. Three of the physician defendants, Drs. Moser, Donnell, and Brown, appeal. At the close of Audra’s case, defendant HCA Health Services of Kansas, Inc., d/b/a Wesley Medical Center (Wesley), was dismissed on its motion for judgment as a matter of law. See K.S.A. 2000 Supp. 60-250 (formerly motion for directed verdict). The jury assessed zero fault to Eric Pekarski, D.O.; Katie Mroz, M.D.; Philip C. James, M.D.; and “unknown physician.” Mroz and the “unknown physician” were not defendants; James’ motion for summary judgment was granted before trial.
Our jurisdiction is under K.S.A. 20-3017 (the defendants’ motion to transfer was granted).
We reverse, set aside the jury’s verdict, and remand for a new trial. The district court erred in excluding certain expert testimony regarding the comparative fault of Wesley and in sustaining Wesley’s K.S.A. 2000 Supp. 60-250 motion for judgment as a matter of law. We also disapprove the submission of an overly broad jury instruction setting forth a physician’s reporting duty to: (1) other physicians and the hospital, (2) public agencies, and (3) the pregnant patient, as well as the length of time that duty would continue.
Because of our reversal and remand we need not reach the following additional issues raised on appeal by the physician defendants: Did the district court err: (1) in allowing certain claims for future medical care and treatment to be submitted to the jury; (2) in allowing a claim for future lost wages, loss of earning capacity, loss of career opportunity, and employment disability to be submitted to the jury; and (3) by precluding the doctors from comparing the fault of Bonnie? The evidence underlying the district court’s decision on these issues may be subject to change. Defendant Moser also asks us to evaluate this case as if it were a “loss of chance” case. The case had neither been framed nor tried as a loss of chance case; thus, this issue is not properly before us. See Jarboe v. Board of Sedgwick County Comm’rs, 262 Kan. 615, 622, 938 P.2d 1293 (1997).
INTRODUCTION
The focus of all of Audra’s claims is on the failure to notify Bonnie of her hepatitis B status and to administer gamma globulin and vaccine treatment to Audra at the time of her birth. While pregnant, Bonnie was treated by numerous physicians. Laboratory test results obtained early in her pregnancy showed she was a carrier of hepatitis B, although she was asymptomatic and experienced no related health problems. A carrier, during pregnancy and delivery, can pass hepatitis B to her child. That happened here. Audra did not receive the necessary preventive treatment and has tested positive for the presence of hepatitis B surface antigens and is a chronic carrier. As of trial, she had none of the identifiable risk factors for more severe stages of hepatitis B and had remained asymptomatic and without physical problems related to her status as a carrier.
FACTS
In order to better understand the parties’ contentions, and because Audra’s claims arise within the current environment of managed care, we set out the facts in detail. We understand there is no universally accepted definition of “managed care.” See Stephen M. Fatum, Managed Care, in Health Care Law Desk Reference § 501, p. 59 (Alison Barnes et al. eds., 2001). We use the term here to reflect Bonnie’s referrals by her primary care physicians to specialists under her Equicor Health Plan, Inc., and to the specialists’ referrals to and/or use of the primary care physicians for specific tests and lab work.
In February 1990, Bonnie was under the care of Dr. Kemie Binyon, a family practice physician. She became pregnant and was referred by Dr. Binyon to Dr. Michael Brown, a board-certified obstetrician and gynecologist. On February 12,1990, during Bonnie’s first visit, Dr. Brown ordered laboratory tests, including one for hepatitis B. Those orders were given to Bonnie, who took them to Dr. Binyon’s office. Dr. Binyon’s staff drew blood samples and transmitted them to a laboratory for testing. The laboratory sent the results to Dr. Binyon’s office, which then sent them to Dr. Brown. Included in the test results was a report dated February 20, 1990, which showed that Bonnie tested positive for hepatitis B. Neither Dr. Brown nor Dr. Binyon informed Bonnie of the results of this test.
During Bonnie’s second visit to Dr. Brown, he requested a sonogram because he believed her growth was a bit abnormal. Due to managed care insurance constraints, Dr. Brown had to have a referral from Dr. Binyon. Dr. Binyon refused to provide the sonogram referral. Dr. Brown elected to terminate his doctor-patient relationship with Bonnie, still in her first trimester of pregnancy, because he said he could not properly treat her without conducting tests he believed necessary to protect her health and the health of the developing fetus.
Bonnie then sought the care of another physician. She first terminated her doctor-patient relationship with Dr. Binyon and requested that he forward her medical records to Dr. James Donnell. On March 30, 1990, Dr. Donnell became Bonnie’s primary care physician under her Equicor Health Plan. Sometime between March 30, 1990, and May 22, 1990, Dr. Binyon’s office delivered Bonnie’s medical records to Dr. Donnell. Included within those records was the laboratory test result on Bonnie’s positive hepatitis B status. Shortly after March 30,1990, Dr. Donnell, a family practice physician who had chosen to limit his practice to nonobstetrical cases, referred Bonnie to Dr. Scott Moser for obstetrical care.
Despite the referral to Dr. Moser, Bonnie visited Dr. Donnell’s office five times before giving birth to Audra: (1) March 30, 1990; (2) May 22, 1990, for lab work requested by Wesley Family Practice/Dr. Moser; (3) July 2, 1990, for additional lab work; (4) July 17, 1990, for RhoGAM shots ordered by Wesley Family Practice/ Dr. Moser; and (5) August 21,1990, for more lab work ordered by Wesley Family Practice/Dr. Moser. Dr. Donnell never reviewed the hepatitis B test result nor advised Bonnie or later health care providers of her hepatitis B status.
Dr. Moser, a physician certified in family practice, made obstetrics an active part of his practice. He first saw Bonnie on April 11,1990, when she was 18 weeks pregnant. On that visit Dr. Moser decided that a sonogram would be helpful and requested her medical records from Dr. Brown. After Dr. Moser received the medical records, he noted and entered the hepatitis B information in Bonnie’s chart. Dr. Moser’s standard practice in the care of hepatitis B positive pregnant women is to enter the information at a prominent place in the medical record. He does this so that at the time of delivery anyone involved in the mother’s care will be aware of her hepatitis B status and ensure that the child receives appropriate treatment. He testified that he believed he entered the information sometime after the initial visit on April 11, 1990, and before Bonnie’s May 16,1990, visit. Dr. Moser testified that he recalled telling Bonnie about her hepatitis B status and advising her of the implications it would have for her fetus, but he was not sure when the conversation took place. Bonnie testified Dr. Moser did not tell her about her positive hepatitis B test or its implications for the fetus.
Dr. Moser testified that a patient’s prenatal records are customarily sent to the delivering hospital at about 34 to 36 weeks’ gestation. In 1990, the labor, delivery, and recovery unit (LDR) at Wesley had an established policy and procedure. Once prenatal records were received from a patient’s physician, they were sent directly to the LDR and placed in alphabetical order in a filing cabinet. The records were filed by the unit clerks as the records came into the unit. When the patient was later admitted to the hospital, the unit clerk would retrieve the patient’s prenatal history from the fifing cabinet, put it with the chart that was being assembled upon admission, and deliver the chart to the physician who was handling the labor and delivery.
Wesley would stamp all records within a chart with “address-o-graph” information. The address-o-graph stamp included the patient’s hospital stay number, name, birthday, date of admission, and the date Wesley received the record. This procedure ensured that such information was on every piece of permanent record within the hospital and that the information would follow the patient through the course of her care and treatment at Wesley.
Bonnie’s prenatal records from Dr. Moser were stamped with an address-o-graph, showing that Wesley received the records. However, the only date that appeared in the address-o-graph information was Bonnie’s September 14, 1990, admission date. At trial, Wesley personnel testified that, despite the professed practice of stamping records with the date they are received, the information concerning the receipt of the records is inaccurate and unreliable.
The last entry on the copy of Dr. Moser’s prenatal records from the hospital file was made on August 30, 1990. The original prenatal records maintained by Dr. Moser in his office contain a later entry made on September 11, 1990. It is therefore likely that the prenatal records from Dr. Moser were sent to Wesley sometime before September 11, 1990.
After a baby is born, Wesley’s standard practice is to place information in the mother’s chart in the medical chart for the baby. Dr. Moser expected the standard practice to occur in Bonnie and Audra’s case. He assumed that the hepatitis B information would find its way in a timely manner to the appropriate caregivers for Audra, including her designated pediatrician. The pediatrician could then provide Audra with appropriate care and treatment to prevent hepatitis B transmission.
In 1990, Dr. Eric Pekarski was a resident physician at Wesley training to become a specialist in family medicine. He is now board certified in Family Practice. During his residency, he practiced under the supervision of residency program faculty members. On the night of September 14, 1990, between 9:40 and 10 p.m., Dr. Pekarski was called to the LDR. Dr. Pekarski examined Bonnie, determined she was in active labor, contacted his attending physician, Dr. Katie Mroz, and agreed with Dr. Mroz that Bonnie should be admitted.
In admitting a patient, as part of his duties as a resident, Dr. Pekarski completed a Resident Admission Note consisting of the patient’s history. Included within the Resident Admission Note is a section for major medical illnesses. The resident doctor obtains the information to complete that section by asking the patient. Dr. Pekarski followed his general practice of completing the Resident Admission Note and then delivering it to the unit clerk to be placed in Bonnie’s chart. Dr. Pekarski did not review Dr. Moser’s prenatal records when filling out the Resident Admission Note.
It was Dr. Pekarski’s practice to check in with his attending physician when he was providing care to a patient. Dr. Mroz, a physician in Dr. Moser’s office, was on weekend call for Dr. Moser on that particular Friday night. Dr. Pekarski’s practice of consulting with the attending physician was intended at least in part to find out any information about risk factors, including any information in the prenatal records. Thus, Dr. Mroz played a role in the process of putting together the chart for Bonnie.
Dr. Moser arrived at the hospital at 11:06 p.m. By the time Dr. Moser arrived, Bonnie was already in the delivery room, the baby was having distress, and delivery was imminent. The fetal heart tones were dangerously slow, suggesting that the baby’s health might be compromised and that the baby’s condition was not im proving. Because of the emergency situation, Dr. Moser immediately focused on the distressed baby and did not review Bonnie’s prenatal records. Forty-four minutes after Dr. Moser’s arrival, Audra was delivered by Cesarean section, and Dr. Moser helped with the efforts to resuscitate her.
In emergencies such as Bonnie’s, Dr. Moser and other physicians rely on the records system to make sure that the transfer of information from the mother’s prenatal records to the baby’s chart takes place. As part of this record transfer system, Dr. Moser relied primarily on Dr. Mroz and Dr. Pekarski. Dr. Mroz remained at the hospital through the delivery despite Dr. Moser’s arrival and was actively involved in the delivery.
Dr. Moser testified that typically he is both the mother’s doctor and the baby’s doctor. As the baby’s doctor, he would order the hepatitis B inoculation and vaccination needed by the baby of a hepatitis B positive mother. However, in this instance, Dr. Pekarski was covering for the baby’s designated pediatrician, Dr. Phillip James. Thus, Dr. Moser did not order postdelivery treatment for Audra.
Dr. Pekarski handled Bonnie’s discharge from the hospital on September 7, 1990. On October 9, 1990, he dictated a discharge summary, reviewing her medical chart in its entirety. Dr. Pekarski’s discharge summary did not contain information either that Bonnie is hepatitis B positive, or that Audra was bom to a hepatitis B positive mother. At trial, Dr. Pekarski testified that Dr. Moser’s prenatal records were not in Bonnie’s hospital medical chart at the time she presented to the LDR, when he reviewed it while providing her care, or at the time he dictated her discharge summary.
It is recommended that a gamma globulin injection be given to an infant exposed to hepatitis B within the first 12 hours afterbirth. However, the gamma globulin treatment is still effective if administered up to and perhaps beyond 2 days after birth. The hepatitis B vaccine is also given to such a baby within the first week of fife. When this treatment is administered, there remains a 10 percent chance that the newborn will contract hepatitis B.
In 1992, Bonnie underwent a hysterectomy. During the procedure, a nurse was stuck with a needle that had been used on Bon nie. As a result, Bonnie’s blood was tested again. She was advised that she had tested positive for hepatitis B, that it was an infectious disease obtained through intimate contact, and that she should have her family tested. Afterward, Audra was tested and found to be hepatitis B antigen positive.
DISCUSSION
The Comparative Fault of Wesley Medical Center
The physician defendants contend the district court erred by excluding the testimony of Audra’s expert, John Bundren, M.D., on the breach of the standard of care by Wesley’s nurses. See K.S.A. 60-258a (comparative negligence). The district court found Dr. Bundren was not qualified to testify on the nursing standard and granted Wesley’s motion for judgment as a matter of law at the close of Audra’s case because of the lack of expert testimony. We agree with defendants.
The admission of expert testimony lies within the discretion of the district court, and its decision will not be reversed on appeal absent a showing of abuse of discretion. Olathe Mfg., Inc. v. Browning Mfg., 259 Kan. 735, 762, 915 P.2d 86 (1996).
Wesley filed a motion in limine, requesting that the district court exclude the testimony of Dr. Bundren concerning nursing standards. Wesley points out that the limine motion, the supporting trial brief, and its motion to strike Dr. Bundren as an expert on nursing standards are not included in the record on appeal. According to Wesley, these submissions are “vital” to our review, and the appellants cany the burden to include them in the record on appeal. The appellants bear the burden to compile a record sufficient to support their arguments, not those of their opponents. Wesley had the opportunity to request additions to the record to support its arguments. See Supreme Court Rule 3.02(c) (2000 Kan. Ct. R. Annot. 21). It also had the ability to address arguments it advanced below in its appellate briefs. We conclude the question is properly before us on the record as it stands.
The defendants argue that Dr. Bundren’s more than 20 years of experience as an obstetrician/gynecologist in labor and delivery qualified him to testify on the standards applicable to nurses in labor and delivery units, particularly with respect to the review and maintenance of chart information on patients’ infectious diseases. Dr. Bundren testified he had “[w]orked with . . . nurses on a daily or weekly basis in multiple sites across the country.” He answered “yes” to the following question from Audra’s counsel: “Before I ask your opinions are you knowledgeable concerning the general standard for how nurses in a labor and delivery unit would handle prenatal records coming in from a doctor from the point of being received and getting into the chart?”
K.S.A. 60-419 says in part:
“As a prerequisite for the testimony of a witness on a relevant or material matter, there must be evidence that he or she has personal knowledge thereof, or experience, training or education if such be required. Such evidence may be by the testimony of the witness himself or herself.”
K.S.A. 60-456(b) says:
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.”
A further review of Dr. Bundren’s qualifications is appropriate. He is on the faculty of the University of Oklahoma College of Medicine, in the Department of Gynecology and Obstetrics. He is a board certified OB-GYN specialist and a tenured associate professor. He does a substantial amount of private practice. His focus currently is on the hospital’s infertility patients. He is actively involved in teaching the 16 OB-GYN residents who work with him in the operating room and in his private practice office in the hospital. It is not uncommon for him to spend weekends in the hospital with residents delivering babies and managing obstetrical complications and problems. He sees private patients in his office and probably delivers the babies of 20 private patients a year. He is involved in about 200 deliveries a year as a resident supervisor or helper, and it has been that way for many years. He is familiar with high-risk obstetrical situations. He teaches residents about how to handle obstetrical situations and problem patients on a weekly basis in the clinic with patients. He has published and does research. He attends meetings of the American College of Obstetrics and Gynecology, which promotes national standards to make obstetrical care safe across the countiy. In his dealings with pregnant women over the years, he has considered the hepatitis B problem.
Dr. Bundren also has been involved with teaching nurses. He has given numerous lectures to nurses and worked with them on various aspects of patient care in hospitals. He is on the staff of various medical centers in Tulsa and is familiar with labor and delivery unit standards for handling patient records as they come in and are put into patients’ charts.
The critical passage in the proffer of Dr. Bundren’s testimony reads:
“Q. ... [D]id you form an opinion as to whether die labor or any of the labor and delivery nurses at Wesley were negligent in any respect and fell below the standard acceptable nursing practice?
“A. I did form an opinion.
“Q. And what is that opinion?
“A: My opinion is that the nurses failed to follow their own policies and procedures. They failed to adequately assess the patient and document on their nurses assessment diat the patient was hepatitis B surface antigen positive and failed to transmit that information on to die nursery nurses which is die usual means by which diat information is moved around.
“Q. You’re referring to diat nursing admission assessment?
“A. I’m referring to the nursing admission assessment and the documents and testimony diat I became aware of.
“Q. Can you tell us whedier die nurses doing that function, that is adding die hepatitis B information from the prenatal record to die nursing assessment records, would be a standard thing for nurses to do?
“A. That would be a very standard diing for nurses to do.
“Q. You hold diose opinions to a degree of medical probability?
“A. Yes, sir.”
Dr. Brown joined in the proffer, and this preserved the issues of Dr. Bundren’s testimony and Wesley’s dismissal for our review. The district judge excluded Dr. Bundren’s testimony because he viewed Dr. Bundren as a physician who merely worked around nurses and not as one who possessed actual nursing expertise. We hold the district court erred as a matter of law in excluding Dr. Bundren’s testimony on the general standard of care commonly applicable to nurses in labor and delivery units, particularly with respect to the review and maintenance of prenatal chart information.
We visited the medical expert nursing standard of care question in Avey v. St. Francis Hospital & School of Nursing, 201 Kan. 687, 422 P.2d 1013 (1968). Avey supports defendants’ contention that the district court abused its discretion in excluding Dr. Bundren’s testimony. In Avey, we considered whether a physician was qualified to testify to nursing standards and hospital procedures. Avey’s expert, Dr. Robert Stein, testified that he was a licensed physician practicing medicine in Kansas, Massachusetts, and California and that he was familiar with the nursing care standards and practices at issue in the case. Although he had not practiced in Wichita, Dr. Stein testified that he was familiar with the practices of St. Francis Hospital and with nursing care in general in the community. We reversed the district court’s exclusion of Dr. Stein’s testimony. 201 Kan. at 692-93. Wesley argues that Avey is distinguishable on the facts because the challenge to Dr. Stein’s testimony was based on the “locality rule.” See 201 Kan. at 690-91. Dr. Bundren’s testimony was challenged on the basis of his qualifications. We acknowledge the factual distinction; however, we extend the discussion in Avey surrounding a physician testifying as an expert on nursing standards to the situation here. See Chandler v. Neosho Memorial Hospital, 223 Kan. 1, 574 P.2d 136 (1977) (following Avey); Moore v. Francisco, 2 Kan. App. 2d 526, 583 P.2d 391 (1978) (in a malpractice action against an orthopedic surgeon, it was error to exclude an anesthesiologist from testifying on the standard of care in taking a patient’s personal history, a matter common to all areas of medicine).
Wesley cites Hall v. Sacred Heart Med. Ctr., 100 Wash. App. 53, 995 P.2d 621, rev. denied 141 Wash. 2d 1022 (2000), and Haney v. Alexander, 71 N.C. App. 731, 323 S.E.2d 430, cert. denied 313 N.C. 329 (1985), to support its contention that Dr. Bundren was not qualified to testify regarding nursing standards. These citations are puzzling, as the cases seem to support the defendants’ contention that Dr. Bundren’s testimony should have been admitted.
In Hall, the defendant hospital sought to have a doctor, who was codirector of the hospital, testify regarding the standard of care for critical care nurses. Hall objected on competency grounds. The hospital elicited testimony showing that the doctor worked with ICU nurses on a daily basis, was involved in the education and training of nurses, and was involved with the supervision of critical care nurses. On appeal, Hall asked the appellate court to establish a bright line rule stating that only a nurse could testify as to the standard of care of another nurse. The Hall court refused and found the district court had properly admitted the doctor’s testimony. See 100 Wash. App. at 59-60.
The Haney court approved the testimony of two physicians who testified as experts on the nursing standards of care of the defendant hospital. Haney demonstrated one doctor had day-to-day dealings with registered nurses; taught nursing students in a clinical setting; and had worked with nurses who had comparable training, experience, and degree qualifications as the nurses who treated the plaintiff. 71 N.C. App. at 735-36. Haney’s other expert also taught and worked with nurses of comparable training and experience. 71 N.C. App. at 736.
Wesley cites Cox v. Lesko, 23 Kan. App. 2d 794, 935 P.2d 1086 (1997), aff'd in part and rev’d in part on other grounds, 263 Kan. 805, 953 P.2d 1033 (1998), for the proposition that an expert cannot draw upon his or her personal experience alone to formulate his or her opinion. This reliance is misplaced. Cox found it improper for a doctor to testify regarding his or her own preferred method of treatment in determining whether another doctor deviated from the appropriate standard of care. 23 Kan. App. 2d at 798-99. Cox said: “The mere fact that one doctor prefers one method over another does not, by itself, mean that approach is better or preferable to the other.” 23 Kan. App. 2d at 798. Cox is not persuasive here.
Dr. Moser cites K.S.A. 60-3412, which addresses the standard of care for a practitioner of the healing arts. K.S.A. 60-3412 is not applicable here. “A nurse is commonly understood, as reflected in our statutoiy definition of nursing, to be a person who works in the same area as and under the supervision of a physician or other practitioner of the healing arts.” (Emphasis added.) State Bd. of Nursing v. Ruebke, 259 Kan. 599, 627, 913 P.2d 142 (1996). A nurse is not a practitioner of the healing arts. K.S.A. 65-2872(m).
We have no hesitation in holding that Dr. Bundren was qualified to testify regarding nursing standards and their breach. He has extensive experience working in hospital labor and delivery units and is familiar with the standards and practices applicable to nurses working in these units. He testified that he worked on a “daily or weekly basis in multiple sites across the country.” Dr. Bundren had also taught nurses and worked with them on various aspects of patient care in the hospitals. His testimony was well within the scope of his “special knowledge, skill, experience or training,” as required by K.S.A. 60-456(b). Thus, the district court erred in excluding his expert testimony regarding nursing standards.
Assuming Dr. Bundren’s testimony on retrial is as advertised, we also agree with Drs. Moser and Brown that the jury should be permitted to compare Wesley’s alleged negligence. The district court’s decision on Wesley’s K.S.A. 2000 Supp. 60-250 motion for judgment as a matter of law, dependent as it was on the absence of Dr. Bundren’s testimony, also was error. See Morris v. Francisco, 238 Kan. 71, 74, 708 P.2d 498 (1985). Reasonable minds might differ on the existence or extent of Wesley’s liability, making judgment as a matter of law unavailable. The physician defendants are not precluded from making this argument because Dr. Brown joined in the proffer of Dr. Bundren’s testimony; there was no agreement among all parties to allow Wesley’s dismissal; and all defendants included Dr. Bundren in their witness lists by incorporating Audra’s witness list. This situation is distinct from those in Cantrell v. R.D. Werner Co., 226 Kan. 681, 602 P.2d 1326 (1979), and Haberer v. Newman, 219 Kan. 562, 549 P.2d 975 (1976). Here, there was evidence to support a breach of the Wesley nurses’ standard of care and no acquiescence by defendants in the result of Wesley’s motion.
Instruction Number 15 on Physicians’ Duties and Negligence
Audra filed a motion for partial summary judgment, in which she asked the district court to rule that, as a matter of law, the physician defendants providing medical care and treatment to Bonnie while she was pregnant with Audra also owed Audra a continuing duty of care. The district court, observing that the issue of a physician’s duty to the fetus of a pregnant woman intending to carry to term was one of “staggering proportions,” entered an extensive ruling in Audra’s favor on the record. That ruling, which the district court characterized as a “new rule of law,” was the precursor to jury Instruction No. 15, which read:
“The Court has ruled that there are standards drat all physicians had to follow in providing care and treatment to Bonnie and Audra Nold. These standards have been set by the Court and no expert testimony is necessary to establish them. They are as follows:
“1. When a physician undertakes health care or treatment for die condition of a woman’s pregnancy, including without limitation prenatal, labor or delivery care, duties are assumed by the physician for reasonable health care of die fetus or unborn child. When a physician has knowledge or should have knowledge of the mother’s communicable disease, which probably is communicable to die unborn child during delivery, and which communication to die child probably could have been avoided by inoculation upon birth, he has a duty to:
a. advise other known health care providers furnishing the same or related care;
b. advise public agencies charged by law to be so advised; and
c. advise the pregnant mother of die communicable disease and its consequences thereby arming her with die knowledge of the need for inoculation.
“The physician who has knowledge or should have knowledge of die mother’s communicable disease is not excused from these legal dudes just because another physician assumes primary care in his place.
“2. The duty to Audra, the unborn child, arose from the physicians’ duties to the pregnant expectant mother, Bonnie Nold. Those duties are to review all medical records received, or that should have been received, and report all unfavorable test results.
“3. The aforementioned duties of the physicians extend from the time of die initiation of die medical care relationship dirough die time for die effective inoculation of die baby following birth.
“A physician’s deviation from these duties is negligence.” (Emphasis added.)
Defendants argue that Instruction No. 15 was in error because it outlined a duty that was overbroad in scope and time and because it failed to factor in expert testimony to establish a breach of duty or negligence. We agree on both counts and note other complications.
In reality, Instruction No. 15 contained several “new legal rules” that require our attention. It made an exception to the requirement of expert testimony to establish negligence. It held that a doctor who undertakes the duty to care for a pregnant woman who intends to carry to term necessarily undertakes a duty to care for her fetus. When the pregnant woman may transmit a communicable disease during labor and delivery, it extended the duty to the fetus beyond birth and beyond termination of the doctor-patient relationship that gave rise to the duty in the first place and beyond a referral to a specialist or other provider. The district court held the duty did not terminate until preventive measures were taken. The court specified that the duty to the fetus included reviewing all of the pregnant woman’s medical records that are or should have been received and notifying other health care providers, public agencies, and the pregnant woman of the communicable disease. Before this case can be retried, we must address each of these new rules.
Necessity of Expert Testimony to Prove Negligence
The standard of medical or hospital care which is to be applied in any given case is not a rule of law, but a matter to be established by the testimony of competent medical experts. Chandler, 223 Kan. at 5. In order for Audra to recover damages, she was required to prove all the elements of a medical malpractice case: (1) The physicians owed her a duty of care and were required to meet or exceed a certain standard of care to protect her from injury; (2) the physicians breached this duty or deviated from the applicable standard of care; and (3) she was injured and her injury proximately resulted from the physicians’ breach of the standard of care. See Delaney v. Cade, 255 Kan. 199, 202-03, 873 P.2d 175 (1994). The question of whether a duty exists is a question of law. Glassman v. Costello, 267 Kan. 509, 521, 986 P.2d 1050 (1999). But negligence is never presumed, Schmidt v. HTG, Inc., 265 Kan. 372, 382, 961 P.2d 677, cert. denied 525 U.S. 964 (1998), and “may not be inferred merely from a lack of success or an adverse result from treatment. [Citation omitted.] The plaintiff in a medical malpractice case bears the burden of showing not only the doctor’s negligence, but that the negligence caused the [plaintiff s] injury.” Ba con v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 307, 756 P.2d 416 (1988). Expert medical testimony is ordinarily required. Delaney v. Cade, 255 Kan. 199, 211, 873 P.2d 175 (1994).
We believe the expert testimony requirement in medical malpractice cases is particularly apt in the current managed care environment, populated as it is by family practice “gatekeepers” and the specialists to whom they refer patients for care and from whom they receive referrals for more routine tests and procedures. We are aware this arena is not static. As a common-law court we need to turn a receptive ear to societal changes while safeguarding traditional tort concepts that exist to protect injured persons. Affirmance of the district court’s Instruction No. 15 as written, with its relaxation of the expert testimony requirement, would cast a long precedential shadow of liability over health care providers, particularly those who function merely as links in a referral chain required by today’s version of managed care.
Existence and Parameters of Physicians’ Duties to a Fetus
Defendants acknowledge that a doctor owes a duty of care, i.e., must meet or exceed the standard of care applicable to a given patient, once he or she establishes a doctor-patient relationship. Dr. Donnell disputes the district court’s holding as a matter of law that a physician who establishes a doctor-patient relationship with a pregnant woman who intends to carry to term also establishes a doctor-patient relationship with the fetus, particularly as applied to a referring primary care physician like himself. Drs. Moser and Brown do not deny they had duties to Audra; however, they argue their duties ended when their doctor-patient relationship with Bonnie terminated.
The first portion of the district court’s holding does not trouble us in the abstract. To the extent a pregnant woman desires to continue her pregnancy and deliver a healthy baby at its conclusion, her interest in receiving adequate health care is inevitably intertwined with any interest or potential interest of her fetus. In such a situation, the patient cannot be separated from her pregnancy nor her pregnancy from herself. We need not look beyond this incomparable relationship that is the genesis of the human condi tion. The mother who wishes to caray her pregnancy to term looks to her physician to guide her through her pregnancy, with the ultimate goal of the delivery of a healthy infant. Childbirth involves a universally recognized unique relationship between mother and child.
Other jurisdictions have recognized the relationship between a physician and a pregnant patient and her fetus. See Hughson v. St. Francis Hosp., 92 App. Div. 2d 131, 132, 459 N.Y.S.2d 814 (1983) (finding “it is now beyond dispute that in the case of negligence resulting in prenatal injuries, both the mother and the child in útero may each be directly injured and are each owed a duty, independent of the other”); Wheeler v. Yettie Kersting Memorial Hosp., 866 S.W.2d 32, 44 n.16 (Tex. Civ. App. 1993) (pointing out that Burgess v. Superior Court, 2 Cal. 4th 1064, 9 Cal. Rptr. 2d 615, 831 P.2d 1197 [1992], noted the scope of duty owed by a treating physician to a pregnant woman extends to the fetus and includes a duty to avoid injury to the fetus). These decisions support our holding that a duty to the fetus exists in the abstract.
The difficulty arises when we leave the abstract for the real world. Does a referring family practice physician such as Dr. Donnell have a doctor-patient relationship with Bonnie — and thus Audra — sufficient for a duty to arise? Do the duties Drs. Brown and Moser admit they have to Audra extend beyond the termination of their relationship to Bonnie? Does their knowledge of Bonnie’s communicable disease and ways to minimize the risk of its transmission to Audra affect the answer? What are the parameters of the duty in such a situation?
Where a communicable disease has been diagnosed in a pregnant woman who desires to continue her pregnancy to term and deliver a healthy baby, we agree with the district court that the woman’s physician has an obligation as a matter of law to inform the woman of the diagnosis. See Annot., Malpractice: Failure of Physician to Notify Patient of Unfavorable Diagnosis or Test, 49 A.L.R. 3d 501 pp. 507-512, and 2001 Supp. p. 43; see also Jacobs v. Theimer, 519 S.W.2d 846, 848 (Tex. 1975) (finding that a physician was under the duty to disclose to a pregnant woman that she had contracted rubella and to inform her of the risk of proposed treatment in continuing the pregnancy); Ray v. Wagner, 286 Minn. 354, 355-57, 176 N.W.2d 101 (1970) (a routine Pap smear reported “suspicious for malignancy”; doctor tried to reach patient to report result but she had moved without notifying the doctor of a forwarding address, and she had no phone at her home; carcinoma of the cervix diagnosed; doctor had a duty to take whatever steps were reasonable to notify the patient of her test results; negligence and causation were jury questions; jury’s verdict was for the doctor).
Because a woman’s interest in preventing the spread of a disease is intertwined with any interest or potential interest of her fetus at that point, this holding is consistent with the physician’s tandem duty to the fetus. It is also philosophically consistent with decisions from other jurisdictions recognizing a doctor’s duty to inform non-patient third parties of infectious disease to prevent its spread. See Hoffman v. Blackmon, 241 So. 2d 752, 753 (Fla. Dist. App. 1970), cert. denied 245 So. 2d 257 (Fla. 1971) (finding the physician was liable for failing to warn family members that a patient with a communicable disease could infect them); Moreta v. New York City Health & Hospitals Corp., 238 App. Div. 2d 149, 149, 655 N.Y.S.2d 517 (1997) (finding that physicians owed a duty to the unborn child, where medication was discontinued during pregnancy and resulted in the child’s contracting tuberculosis from the mother); DiMarco v. Lynch Homes-Chester County, 525 Pa. 558, 561-63, 583 A.2d 422 (1990) (finding that under Restatement [Second] of Torts § 324A [1965], physicians owed a duty to the boyfriend of a hepatitis B carrier); Troxel v. A.I. Dupont Institute, 450 Pa. Super. 71, 83-84, 675 A.2d 314, rev. denied 546 Pa. 668 (1996) (finding that physicians have a duty to third persons and must correctly inform the patient about the contagious nature of the disease to prevent its spread to those who are within the foreseeable orbit of risk of harm); Bradshaw v. Daniel, 854 S.W.2d 865, 872-73 (Tenn. 1993) (finding the physician had a duty to warn identifiable third persons in the patient’s immediate family of foreseeable risks associated with Rocky Mountain Spotted Fever).
We also note that this court in Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093 reh. denied, 187 Kan. 186, 354 P.2d 670 (1960), expressed an interesting tangential observation on informing a pa tient. Natanson concerned an allegation of medical malpractice where the patient consented to treatment but claimed the nature and risks of cobalt treatment for cancer had not been explained to her. The Natanson court said:
“There is probably a privilege, on therapeutic grounds, to withhold the specific diagnosis where the disclosure of cancer or some other dread disease would seriously jeopardize the recovery of an unstable, temperamental or severely depressed patient. But in the ordinary case there would appear to be no suchwarrant for suppressing facts and the physician should make a substantial disclosure to the patient prior to the treatment or risk liability in tort.” (Emphasis added.) 186 Kan. at 406.
The other specific questions posed by this case are questions of fact that require further development of the record on retrial. Whether all or some of the physicians treating Bonnie failed to use the required care and diligence in discharging their duty to inform her of her hepatitis B status is to be decided with the aid of expert medical testimony. The jury should be guided by the language in PIK Civ. 3d 123.01, Duty of Health Care Provider:
“In performing professional services for a patient, a [physician] has a duty to use that degree of learning and skill ordinarily possessed and used by members of that profession and of that school of medicine in the community in which the [physician] practices, or in similar communities, and under like circumstances. In the application of tills skill and learning the [physician] should also use ordinary care and diligence. A violation of this duty is negligence.”
See also PIK Civ. 3d 123.10 (expert testimony).
The physician defendants will be free to argue that, once a pregnant patient is transferred to another doctor, the transferring doctor is governed by a different standard of care. Audra will be free to contend that a continuing duty existed to provide treatment and care to her while in útero and at the time of her birth. The jury will be free to decide whether the physicians were required to act to inform Bonnie throughout the period during which preventive steps could have been taken and whether a patient’s primary care physician continues to be responsible for the well-being of the expectant patient and the patient’s fetus, even when the patient is referred to an obstetrical specialist. PIK Civ. 3d 123.12 relates to the duty of a medical specialist and PIK Civ. 3d 123.13 covers the referral of a patient to another health care provider. (“A_who undertakes the treatment and care of a patient and refers the patient to a_for treatment and care is not legally responsible for any negligence on the part of the_unless (he)(she) has failed to exercise reasonable care in selecting the__”) See Stovall v. Harms, 214 Kan. 835, 522 P.2d 353 (1974); accord 2 Louisell & Williams, Medical Malpractice ¶ 16.05(1) (2001) (liability for referrals).
For example, Dr. Donnell proffered the testimony of Dr. David Kingfisher. Dr. Kingfisher, because of the district court’s summaiy judgment ruling leading to Instruction No. 15, was not permitted to testify. Dr. Donnell’s counsel said:
“In arguments in response to summary judgment motion of tire plaintiff with respect to duty at that time I presented to the court the opinion of Dr. David Kingfisher and I would as a matter of judicial economy as well as overall economy proffer that. If he was called to testify he would testify as to the duty of Dr. Donnell and that Dr. Donnell’s duty was met by properly transferring obstetrical care of Bonnie Nold to Dr. Moser and that the patient who is bringing this action, Audra Nold, under these circumstances was not the patient of Dr. Donnell and he was not in a position to protect her from the alleged injury.”
Expert witnesses should be permitted to testify on retrial for both sides to assist the jury in determining the contours of the doctor-patient relationship and resulting duty in a referral system.
Dr. Moser’s contention that he had no physician-patient relationship with Audra following her delivery, and Dr. Brown’s evidence that he ended his doctor-patient relationship with Bonnie during the first trimester of her pregnancy, should also be considered by the trier of fact. The effect of the termination of Dr. Bin-yon’s care by Bonnie also should be considered. Whether a doctor-patient relationship exists is generally a question of fact for the jury. Rule v. Cheeseman, Executrix, 181 Kan. 957, 964, 317 P.2d 472 (1957). A duty arises and liability may be imposed only for negligence occurring during the doctor-patient relationship. Again, expert medical testimony will assist the jury in resolving Audra’s negligence claims under the standard of care owing to Bonnie and Audra during the existence of each of Bonnie’s particular doctor-patient relationships.
Duty to Report to Public Agencies
Instruction No. 15 also addressed the district court’s holding that Bonnie’s physicians had a duty to report Bonnie’s hepatitis B status to the local health department.
The version of K.S.A. 65-118 in effect in 1990 said:
“Whenever any person licensed to practice the healing arts . . . knows or has information indicating that a person is suffering from or has died from an infectious or contagious disease, such knowledge or information shall be reported immediately to the county . . . board of health . . . , together with the name and address of the person who has or is suspected of having the infectious or contagious disease . . . .”
The Kansas Department of Health and Environment (KDHE) has adopted rules relating to the reporting of infectious or contagious diseases. See K.A.R. 28-1-2. K.S.A. 65-101(a)(6) authorizes die Secretary of Health and Environment to adopt rules and regulations to carry out the Secretary’s 65-101(a) responsibilities, including reporting requirements. K.S.A. 65-101(a)(l). K.A.R. 28-1-1(h) defines “disease” as a “definite morbid process having a characteristic train of symptoms.” K.A.R. 28-1-2 lists infectious or contagious diseases and was amended in 1990. K.A.R. 28-l-2(a) (1989) listed hepatitis, type A (infectious), K.A.R. 28-l-2(a)(20); type B (serum), K.A.R. 28-l-2(a)(21); and type non-A non-B, K.A.R. 28-l-2(a)(22).
Dr. Donnell cites K.S.A. 1990 Supp. 65-6004 to support his argument that defendants had no duty to warn others of Bonnie’s hepatitis B status. In 1990, 60-6004 pertained only to the reporting of AIDS test results and does not apply here. (K.S.A. 65-6004 was amended in 1996 to include “an infectious disease.” See K.S.A. 2000 Supp. 65-6004[a]).
Dr. Gianfranco Pezzino, the State Epidemiologist with KDHE, a witness for defendants, testified that in 1990 chronic hepatitis was not reportable in Kansas and is not reportable today. He was familiar with the administrative regulations as head of the epidemiology division of the agency charged with adopting the regulations. Viral hepatitis on the fist of reportable diseases but not chronic hepatitis. The district court’s Instruction No. 17 requested by Audra referenced K.A.R. 28-1-2(16), viral hepatitis. According to Dr. Pezzino, the case definition for viral hepatitis “is an acute illness with discrete onset of symptoms of jaundice or elevated serum enzymes.” He was reading from a “standardized case put together by the Centers for Disease Control and Department of Epidemiology.”
Carol Borger, R.N., administrator of the Butler County Health Department, was a witness for plaintiffs. On cross-examination she was asked by counsel for Dr. Brown:
“Q. Those forms and formats as you got in 1990 specifically pointed out you do not report cases of chronic hepatitisor chronic carriers, isn’t that a fact?
“A. I believe that’s what the form says.”
We also note in the record a letter of May 27, 1992, from Keck R. Hartman, M.D., to Larry R. Hund, M.D., reporting that Bonnie is a “hepatitis B carrier with a positive surface antigen. I checked her enzymes and they are normal which indicates she does not have chronic active disease.” On cross-examination Bonnie agreed that she had been told that she was symptom free at this point in time.
Dr. Larry W. Rumans, who has an active practice in infectious diseases, a witness for Audra, testified the reporting standards were generated by KDHE, “often at the request of the Centers for Disease Control.” According to him, the reporting requirement is the same regardless of whether hepatitis chronic or acute. He opined that the health department should have been notified “that Mrs. Nold had chronic hepatitis B.”
The existence or nonexistence of a reporting duty under K.S.A. 65-118 remains an issue on remand. Questions that may arise include: What type of hepatitis did Bonnie have in 1990? What reporting did the applicable KDHE regulation require? Is there a medical distinction between “viral” hepatitis and “chronic” hepatitis? What significance does the K.A.R. 28-l-l(h) definition of “disease” have? If Bonnie’s hepatitis B in 1990 was “symptom free” did she have a “disease” under 28-l-l(h)? It would seem that if there is a medical distinction between “viral” and “chronic,” and if Bonnie’s hepatitis B in 1990 was not “viral,” none of the defendant physicians could have had a K.S.A. 65-118 or K.A.R. 28-1-2(16) reporting duty. If her hepatitis B in 1990 was “viral,” it appears at least some of the defendants would have had a reporting duty. We do not prejudge this question. Resolution will rest with the district court, assisted by expert medical testimony and experienced medical malpractice counsel.
Conclusion
We hold, as a matter of law, that a physician who has a doctor-patient relationship with a pregnant woman who intends to carry her fetus to term and deliver a healthy baby also has a doctor-patient relationship with the fetus. We also hold as a matter of law that the pregnant woman is entitled to be informed if test results reveal that she has a communicable disease that can be transmitted to her baby during labor and delivery.
On remand, the district court will specify in the instructions the specific allegations of negligence supported by the evidence. See Natanson v. Kline, 186 Kan. at 399. Dr. Bundren shall be permitted to testify, and Wesley shall be included again as a defendant in the lawsuit. Expert standard of care medical testimony may be introduced on Audra’s claims concerning the defendant physicians’ failure to report to Bonnie her hepatitis B test result, the adequacy of the reporting of her test result to other physicians and the hospital, the failure of Audra to receive the postdelivery gamma globulin injection and hepatitis B vaccination, and Wesley’s duties under the existing circumstances.
We cannot foresee what may occur at retrial. Defendants not involved in this appeal as well as Wesley may be in the courtroom. The district court will control the case as it develops after remand consistent with this decision in ruling on motions, evidence, and instructions.
Reversed and remanded for a new trial.
McFarland, C.J., not participating.
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The opinion of the court was delivered by
McFarland, C.J.:
Randy D. Owens appeals his jury trial conviction of one count of involuntary manslaughter (K.S.A. 2000 Supp. 21-3404) and one count of criminal possession of a firearm (K.S.A. 2000 Supp. 21-4204[a][3]). Defendant was sentenced to 122 months and 9 months, respectively, with the sentences running concurrently. The victim in this case was defendant’s brother, Jeremy Owens.
FACTS
The tragic events herein occurred on July 7, 1998, at the rural Franklin County residence of the grandmother of defendant and his brother Jeremy Owens. Jeremy was the owner of a .38 caliber revolver and received a gunshot in the chest from the gun. The first responder to the 911 call was Sheriff Deputy Woods who was advised by defendant that the gun had accidentally fired while Jer emy was cleaning it. The victim was transported to a Topeka hospital where he died later that day. Deputy Woods had a question about whether or not the gunshot was self-inflicted and asked the Kansas Bureau of Investigation for assistance.
Defendant was interviewed by KBI Special Agent Raymond Lundean at the hospital. Initially, defendant advised the agent that Jeremy was on the front porch of the residence trying to open the gun’s cylinder when the defendant bumped him in the back with die door as defendant stepped onto the porch. The gun discharged. Later in the interview, the agent asked defendant exacdy how the shooting occurred as an autopsy would reveal additional information. When Agent Lundean asked if the shooting could have occurred in any other way, defendant became visibly upset, began to cry, and told the agent that he had the gun in his hand and that he had killed his brother. Defendant said Jeremy had been on the porch attempting to get the cylinder open when defendant walked out. Jeremy handed defendant the gun and stepped off the porch. Defendant remained on the porch, held the gun at waist height, and tried to force the cylinder open. While he was doing so, the gun discharged. Defendant said he did not even remember if he had his finger on the trigger. Defendant said the bullet entered Jeremy’s body and Jeremy began to move toward his aunt’s house next door when he collapsed. Defendant showed Agent Lundean how Jeremy was standing in relation to the defendant when the shooting occurred. Agent Lundean testified that he believed this was more consistent with the path of the bullet and the injury he observed at the hospital.
Agent Lundean further testified that defendant told him that he, the defendant, had shot the gun at some cans earlier in the day.
Forensic pathologist Dr. Eric Mitchell performed the autopsy and testified that the bullet passed through Jeremy’s lungs and heart and its path was not consistent with a self-inflicted gunshot wound.
Defendant testified that Jeremy handed him the gun for help in unjamming it. Defendant further testified that he was able to turn the cylinder and that, upon seeing this, Jeremy reached for the gun and it discharged. Defendant testified that he had initially given false information as to how the shooting had occurred because he had previously been convicted of a felony and knew he should not possess the gun.
Defendant stipulated that he had been convicted of aggravated assault in 1996.
ISSUES
On appeal defendant raises two issues:
1. For purposes of defendant’s conviction on count i, is criminal possession of a firearm a status crime or was it enacted for the protection of human life or safety?
2. Did the district court err in failing to give a unanimity instruction on count ii, criminal possession of a firearm?
We turn now to our analysis of these issues.
INVOLUNTARY MANSLAUGHTER CONVICTION
Defendant argues that the underlying crime, criminal possession of a firearm, does not support a charge of involuntary manslaughter and the district court erred in denying defendant’s motion to dismiss that charge.
The State disagrees with defendant’s argument but agrees that this court must interpret whether prohibiting felons from possessing a firearm is a statute enacted for the purpose of protecting human fife and safety.
Interpretation of a statute is a question of law over which this court’s review is unlimited. State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998).
Criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998).
K.S.A. 2000 Supp. 21-3404 provides:
“Involuntary manslaughter is die unintentional killing of a human being committed:
“(a) Recklessly;
“(b) in the commission of, or attempt to commit, or flight from any felony, other than an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto, that is enacted for the protection of human life or safety or a misdemeanor that is enacted for the protection of human life or safety, including acts described in K.S.A. 8-1566 and 8-1568 and amendments thereto but excluding the acts described in K.S.A. 8-1567 and amendments thereto; or
“(c) during the commission of a lawful act in an unlawful manner.
“Involuntary manslaughter is a severity level 5 person felony.”
In count I, defendant was charged pursuant to K.S.A. 2000 Supp. 21-3404(b) in the following language:
“That on or about the 7th day of July, 1998, the above-named Defendant, within the above-named County, in the State of Kansas, then and there being, unintentionally kill a human being, to-wit: Jeremy R. Owens, while in the commission of Felon in Possession of a Firearm, a violation of K.S.A. 21-4204, in violation of K.S.A. 21-3404(b), Involuntary Manslaughter, a severity level 5, person felony.”
(NOTE: Throughout the pleadings herein, the crime of criminal possession of a firearm is referred to as felon in possession of a firearm.)
Criminal possession of a firearm (K.S.A. 2000 Supp. 21-4204[a][3]), under which defendant was charged in count II and which was used as the underlying felony in count I, provides in part:
“(a) Criminal possession of a firearm is;
“(3) possession of any firearm by a person who, within the preceding five years has been has been convicted of a felony, other than those specified in subsection (a)(4)(A), under the laws of Kansas or a crime under a law of another jurisdiction which is substantially the same as such felony, has been released from imprisonment for a felony or was adjudicated as a juvenile offender because of the commission of an act which if done by an adult would constitute the commission of a felony, and was found not to have been in possession of a firearm at the time of the commission of the offense.
“(c) Violation of subsection . . . (a)(3) or (a)(4) . . . is a severity level 8, nonperson felony . . . .”
Count II charged the following:
“That on or about the 7th day of July, 1998, the above-named Defendant, within the above-named County, in the State of Kansas, did then and there being, knowingly possess a firearm, having been convicted of Aggravated Assault, a severity level 7, person felony, within five (5) years preceding such possession, a violation of K.S.A. 21-4204(a)(3), Felon in Possession of a Firearm, a severity level 8, nonperson felony.”
Specifically, defendant contends that criminal possession of a firearm is a “status” crime, was not “enacted for the protection of human life or safety” and, therefore, does not support the charge of involuntary manslaughter. Further, defendant argues that Kansas law requires that an offender take some action that imminently threatens public safety, such as battering someone, excessively speeding, running through a stop sign, or illegally distributing a weapon, in order to convict him or her of involuntary manslaughter.
The State argues that the court need only look to the legislative intent behind the statute in order to determine that it was enacted for the protection of human fife or safety. When the statute was initially enacted in 1969, it was placed under Chapter 21, Article 42, entitled “Crimes Against the Public Safety.” It remains within that Article today. Further, the State argues the case law cited by defendant is inapplicable.
No Kansas cases have been cited where this issue has been discussed and decided, nor has our research disclosed any. Defendant relies quite heavily on State v. Underwood, 228 Kan. 294, 615 P.2d 153 (1980). This reliance is misplaced.
In Underwood, the defendant had been convicted of stealing a bicycle in 1974. In 1978, while in possession of a gun, he shot and killed an individual with whom he had been fighting. The State charged Underwood with felony murder, relying on unlawful possession of a firearm as the underlying inherently dangerous felony. The firearm charge was based on the fact that the defendant had been convicted of the 1974 bicycle theft and had possession of a firearm. 228 Kan. at 295-96.
The issue in Underwood argued as applicable herein was whether the collateral felony of unlawful possession of a firearm by an ex-felon (K.S.A. 21-4204, the same statute at issue here) was an inherently dangerous felony so as to support the application of the felony murder rule under K.S.A. 21-3401. The court held that it was not, reversing Underwood’s conviction. 228 Kan. at 300-01.
Adopting Justice Prager’s reasoning in his dissent in State v. Goodseal, 220 Kan. 487, 503, 553 P.2d 279 (1976), Underwood held that in determining whether a particular collateral felony is inherently dangerous to human life so as to justify a charge of felony murder under K.S.A. 21-3401, the elements of the collateral felony should be viewed in the abstract, and the circumstances of the commission of the felony should not be considered in making the determination. As such, the court continued, the unlawful possession of a firearm proscribed by K.S.A. 21-4204(l)(b) (Weeks) (now K.S.A. 2000 Supp. 21-4204[a][3]), when considered in the abstract, is not a felony inherently dangerous to human fife and will not sustain a conviction for murder in the first degree under the felony murder rule. 228 Kan. at 306.
In reaching this determination, the court noted the following rule concerning felony murder and transferred intent:
“The felony murder rule has logic based on the theory of transferred intent. The malicious and premeditated intent of committing the inherently dangerous collateral felony is transferred to the homicide to supply the elements of malice and premeditation without further proof. Consistent with this thinking, most courts require that the collateral felony be inherently dangerous for the felony murder rule to be applicable. 2 Wharton’s Criminal Law § 146, p. 210 (14th ed. 1979).
“ ‘In the typical case of felony-murder, diere is no malice in “fact”, express or implied; the malice is implied by the “law.” What is involved is an intended felony and an unintended homicide. The malice which plays a part in the commission of the felony is transferred by the law to the homicide. As a result, of die fictional transfer, the homicide is deemed committed with malice; and a homicide with malice is common law murder.’ 2 Wharton’s Criminal Law § 145, p. 204 (14th ed. 1979).” 228 Kan. at 303.
The court continued:
“This crime [unlawful possession of a firearm] is a status crime in that it is limited to drunkards, drug addicts and ex-felons. It is malum prohibitum. The possession of the firearm is prohibited because a firearm in the possession of a habitual drunkard, a narcotics addict or an ex-felon is against the public policy of the State as declared by the legislature. The possession of the firearm when viewed in the abstract is not inherently dangerous to human life. This is true because it seems unlikely that mere possession, which has been defined as dominion and control over an object, and not its use, could be undertaken in so dangerous a manner that the prohibited possession would result in murder in the first de gree. ... It appears quite impossible to find an intent in this collateral felony encompassing malice, deliberation and premeditation so as to transfer these elements to the homicide and relieve the prosecution from proof of the same. If diese elements are present in the use of the firearm they are not present in the possession of the firearm. They should then be proven as elements of premeditated first degree murder by reason of die malicious and deliberate use of die gun.” 228 Kan. at 303-04.
In the case before us, defendant argues that the Underwood rationale should be applied to the question of whether criminal possession of a firearm may support the charge of involuntary manslaughter. We disagree.
Underwood was decided on whether unlawful possession was a crime inherently dangerous to human life as required by the felony murder statute. Involuntary manslaughter as charged herein requires an underlying felony, other than an inherently dangerous felony as defined by K.S.A. 21-3436. The statute further requires only that the underlying felony had been “enacted for the protection of human fife or safety.” The rule set down in Underwood works in felony murder because, as we stated therein, the malice and intent required in homicide is supported by the intentional commission of the underlying felony. Involuntary manslaughter does not require that the killing of the human being be intentional; in fact, it is the unintentional killing of a human being that is prohibited by K.S.A. 2000 Supp. 21-3404.
In addition, as the State points out, K.S.A. 2000 Supp. 21-4204 is included in Article 42 of Chapter 21 of the Kansas Statutes Annotated. Article 42 is entitled “Crimes Against the Public Safety.” Also included in Article 42 are the following crimes: criminal use of weapons (K.S.A. 2000 Supp. 21-4201), aggravated weapons violation (K.S.A. 21-4202), criminal disposal of firearms (K.S.A. 2000 Supp. 21-4203), criminal possession of a firearm by a juvenile (K.S.A. 21-4204a), defacing identification marks of a firearm (K.S.A. 21-4205), failure to register sale of explosives (K.S.A. 21-4207), failure to register receipt of explosives (K.S.A. 21-4208), criminal disposal of explosives (K.S.A. 21-4209), criminal possession of explosives (K.S.A. 21-4209a), carrying concealed explosives (K.S.A. 21-4210), refusal to yield a telephone party fine (when in formed it is needed for an emergency) (K.S.A. 21-4211), creating a hazard (K.S.A. 21-4212), unlawful failure to report a wound (K.S.A. 21-4213), obtaining prescription-only drug by fraudulent means (K.S.A. 2000 Supp. 21-4214), obtaining a prescription-only drug by fraudulent means for resale (K.S.A. 21-4215), selling beverage containers with detachable tabs (K.S.A. 21-4216), criminal discharge of a firearm (K.S.A. 21-4217), unauthorized possession of a firearm on the grounds of or within certain state-owned or leased buildings and county courthouses (K.S.A. 21-4218), criminal discharge of a firearm (K.S.A. 2000 Supp. 21-4219), and unlawful endangerment (while involved in the production of a controlled substance) (K.S.A. 2000 Supp. 21-4220).
Considering the tenor of the crimes contained in Article 42 of the Chapter 21, it is clear that they were all enacted for the protection of human life or safety. It seems unreasonable to pull criminal possession of a firearm (K.S.A. 2000 Supp. 21-4204) out of this list and find that it was not enacted for such a purpose. Prohibiting a convicted felon from possessing a firearm for a specified time after his or her conviction is clearly grounded on protecting human life or safety as opposed to further punishing the felon.
Defendant’s argument that a statute “enacted for protection of human life or safety” requires that an offender take some action that “imminently” threatens public safety also fails. As is clear from the fist of Chapter 42 crimes, imminent risk to human life or public safety is not an element of many of the offenses and, logically, there is no reason that the protection of human life and safety should be so limited.
We conclude that criminal possession of a firearm (K.S.A. 21-4204) is a statute enacted for the protection of human life or safety and, accordingly, may serve as the underlying crime in a charge of involuntary manslaughter. The district court did not err in refusing to dismiss the involuntary manslaughter charge.
CRIMINAL POSSESSION OF A FIREARM CONVICTION
The State presented evidence and argued that the defendant possessed the firearm on three separate occasions on July 7,1998: (1) When he and his brother were shooting at cans; (2) when de fendant shot his brother; and (3) when defendant retrieved the gun after the deputy asked where it was. The State argued either occasion (1) or (3) could be used to find defendant guilty of Count II (criminal possession of a firearm). Defendant had different defenses to each. As to the can shooting incident, defendant denied this had occurred and that the officer who testified that defendant told him of this incident was mistaken. As to the retrieval of the gun, defendant testified he was acting under orders of the deputy. Further, these two incidents occurred at different times and places. While giving jury instructions, the trial court did instruct tbe jury that they were to consider possible multiple acts when rendering their verdict. However, the court did not give an instruction requiring that the jurors reach a unanimous decision as to the underlying incident of possession, even though the court was concerned about possible juror confusion.
The parties agree that failure to give a unanimity instruction is reversible error.
This result is in accordance with our recent case of State v. Hill, 271 Kan. 929, Syl. ¶ 3, 26 P.3d 1267 (2001), wherein we held:
“In a criminal case involving convictions for rape, aggravated indecent liberties with a child, and aggravated indecent solicitation of a child, the record is reviewed and it is held: (a) A two-step harmless error analysis is applied to the defendant’s contention that a unanimity instruction should have been given in a multiple acts case. In applying a two-step harmless error analysis, the first step is to decide whether there is a possibility of jury confusion from the record or if evidence showed either legally or factually separate incidents. Incidents are legally separate when the defendant presents different defenses to separate sets of facts or when the court’s instructions are ambiguous but tend to shift the legal theory from a single incident to two separate incidents. Incidents are factually separate when independent criminal acts have occurred at different times or when a later criminal act is motivated by ‘a fresh impulse.’ When jury confusion is not shown under the first step, the second step is to determine if the error was harmless beyond a reasonable doubt with respect to all acts.”
The two incidents involved legally and factually separate incidents. Further, there was a possibility of juror confusion as shown by the trial court’s comments. The parties are correct that reversible error occurred when no unanimity instruction was given in this multiple acts count.
The judgment is affirmed in part and reversed in part. The case is remanded for further proceedings as to Count II, criminal possession of a firearm. | [
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The opinion of the court was delivered by
Per Curiam-.
Gary W. Kleypas was sentenced to death for the murder of C.W. He appeals, claiming errors occurred in the jury’s determination of his guilt and that death should be imposed. He also raises what he claims are constitutional deficiencies with Kansas statutes authorizing imposition of the death penalty. We conclude that no reversible error occurred during the guilt phase of the trial and affirm all of Kleypas’ convictions. We conclude that imposition of the death penalty must be vacated because of an instructional error. We remand for another separate sentencing proceeding to determine whether Kleypas should be sentenced to death.
The Kansas Legislature enacted a death penalty in 1994. See K.S.A. 21-3439; K.S.A. 21-4624. This case represents the first court challenge under the enactment. Kansas law requires an automatic review by this court for anyone who has been sentenced to death under Kansas law:
“(a) A judgment of conviction resulting in a sentence of death shall be subject to automatic review by and appeal to the supreme court of Kansas in the manner provided by the applicable statutes and rules of the supreme court governing appellate procedure. The review and appeal shall be expedited in every manner consistent with the proper presentation thereof and given priority pursuant to the statutes and rules of the supreme court governing appellate procedure.
“(b) The supreme court of Kansas shall consider the question of sentence as well as any errors asserted in the review and appeal and shall be authorized to notice unassigned errors appearing of record if the ends of justice would be served thereby.
“(c) With regard to the sentence, the court shall determine:
(1) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and
(2) whether the evidence supports the findings that an aggravating circumstance or circumstances existed and that any mitigating circumstances were insufficient to outweigh the aggravating circumstances.
“(d) The court shall be authorized to enter such orders as are necessary to effect a proper and complete disposition of the review and appeal.” K.S.A. 21-4627.
We will consider in this opinion Kleypas’ assigned errors, as well as our responsibilities under K.S.A. 21-4627, in three parts. Part one deals with issues arising in the guilt or innocence phase of the trial. This phase is, with few exceptions, analogous to the trial in a non-death penalty case. Part two, the penalty phase, concerns the constitutional challenges against the Kansas death penalty. Finally, part three, which is operative only if an accused is convicted of capital murder in the guilt phase, concerns whether the death penalty shall be imposed.
FACTS
On March 30, 1996, the body of Pittsburg State University student C.W. was discovered in the bedroom of her apartment at 113 W. Lindburg in Pittsburg, Kansas. She had been stabbed seven times through the heart, and her liver had been badly damaged, possibly by stomping. Her body was heavily bruised and her jaw was fractured. She also had a wound over her eyebrow that was caused by a sharp object. Socks tied to a chair in the bedroom, along with socks tied to C.W.’s right leg, indicated that C.W. had been tied to the chair at one point. There was also evidence that C.W. had been sodomized by some object, and there were body fluids on her shirt.
On several occasions prior to the murder, C.W. and her roommate, Robyn, had returned to the apartment to find the door open. In September 1995, money and Robyn’s camera were stolen from the apartment. At the time it was stolen, the camera had contained film with photographs Robyn had taken on a trip to Padre Island, Texas. The camera also had sand in the viewfinder as the result of that trip. C.W. and Robyn requested that the lock to their apartment be changed as a result of the break-ins.
C.W. and Robyn had also been receiving obscene telephone calls from an unidentified male caller. The caller indicated that he knew their names and wished to engage in anal intercourse with C.W. After Robyn reported the calls to police, C.W.’s mother bought a caller identification unit for the apartment and the calls subsequently ceased.
On the night before the discovery of the body, C.W. and her best friend, Tiffany, had spent the evening watching a video in the apartment. C.W. dropped Tiffany off at her residence at approximately 1 a.m. The two made plans to go to garage sales at 8 a.m. that next morning. Mike, C.W.’s fiancee, returned an earlier call from C.W. shortly after 2 a.m. and spoke to her at that time.
When Tiffany arrived at the apartment at 8 a.m. to meet C.W., no one answered the door. Thinking C.W. had decided to sleep in, Tiffany went to a few garage sales alone. She then went to her house and attempted to call C.W. She left a message and continued to telephone because she knew C.W. was scheduled to work at J.C. Penney’s sometime in the early afternoon. After calling Penney’s and learning that C.W. was to report to work at 1 p.m. and then calling Mike, who told her that he had not heard from C.W., Tiffany decided to go to the apartment. When no one responded after she knocked on the doors and windows, she became alarmed and went next door to the apartment manager’s residence. The manager and her son went with Tiffany, and they entered C.W.’s apartment. Tiffany began to call for C.W. Tiffany noticed that C.W.’s bedroom door was closed, and she knew this was unusual. When she told the manager she was afraid, the manager offered to open the door but Tiffany continued. She called out to C.W., but no one answered, so she opened the door and saw the body on the floor.
Police found a footprint outside the kitchen window of the apartment. Another window and its frame had been broken and the screen removed. The screen was found in the trash behind the apartment and a piece of screen was also found in the bedroom clothes hamper. There was blood on the inside doorknob of the apartment and a bloody handprint on the wall. Blood on a pillow in the bedroom was consistent with someone holding a pillow over the mouth of a person who was bleeding.
Suspicion focused on Kleypas, a neighbor of C.W. Kleypas was also a student at Pittsburg State University and had helped his cousin, a maintenance man, provide service for the neighboring apartment buildings. The police discovered that Kleypas’ telephone number had registered on the caller ID in C.W.’s apartment at 1:48 on the morning of the murder. One of the officers recognized the name and knew that Kleypas lived nearby and was on parole for a prior murder. A neighbor found a roll of film on the ground beside Kleypas’ car on the morning of the murder. The developed roll contained photographs of Robyn and her friends and three photographs of the inside of Kleypas’ apartment.
Officers went to Kleypas’ apartment building where they discovered blood on the outer door. A search warrant was obtained and the scene sealed. After the warrant arrived at the scene, officers discovered that the portion of the warrant which contained the list of items to be seized was blank. The officers present conferred and determined that the affidavit could be read together with the warrant. The officers entering Kleypas’ apartment were briefed on the items to be seized that were listed in the affidavit. Inside Kleypas’ apartment, police collected serological evidence and seized a large quantity of physical evidence, including a shower curtain, a pair of shoes, papers identifying Kleypas as the resident, drug paraphernalia, answering machine tapes, photographs, an empty bottle of Canadian Mist, and a wooden box with a false bottom containing syringes. More drug paraphernalia was found in a hidden space outside the apartment door to Kleypas’ unit.
Between 7 and 9 on the morning of the murder, Kleypas went to two stores, writing checks at both for cash. He also withdrew $100 from his bank account and left town.
By that evening, Crawford County Attorney Barry Disney became aware that Kleypas was a suspect. Over the next 2 days, Disney discovered that a report had been filed in 1994 against Kleypas alleging rape and that he had decided not to file charges because he did not think he could win the case. Upon reconsideration, Disney decided to file charges for the 1994 rape. An arrest warrant was issued and Kleypas’ name was entered into a national law enforcement database.
On April 1, 1996, Agent Tom Williams of the Kansas Bureau of Investigation (KBI) was contacted by the Springfield, Missouri, Police Department and advised that Kleypas was in custody. Springfield police officers had been called to the Silver Saddle Motel on April 1 regarding an individual who was attempting suicide. Officers entered the motel room to find blood everywhere and John Kleypas, the brother of Gary Kleypas, standing above Gary Kleypas, and holding him down. The officers ordered John Kleypas from the room. As he left, Gary Kleypas dashed into the bathroom, he had so much blood on his body that officers could not identify his wounds.
Gary Kleypas was ordered from the bathroom. He reached into the waistband of his sweat pants and officers pulled their sidearms. Kleypas continued to reach inside his pants as if looking for something. After he was ordered to remove his hands, he held up his hands and one of the officers could see that he was holding a razor blade. Kleypas said over his shoulder that the officers should just go ahead and shoot him. An officer attempted to mace Kleypas but Kleypas stepped into the bathtub, pulled the shower curtain around his head, and began cutting himself on the legs and ankles. Kleypas then leaned back/and the officer sprayed mace directly into his face. Kleypas crawled out of the bathtub as ordered and collapsed in the doorway as he was crawling out of the bathroom. Medical personnel took him to the hospital.
A search of the motel room uncovered several items, including a bloody check with a note on it that stated “Check brain. Full autopsy please.” They also found narcotics and needles with the plungers pushed in, a bag containing acne medication, a Wal-Mart receipt, and a camera with sand in the viewfinder. Several officers, including KBI Agent Tom Williams and Detective Stuart Hite of the Crawford County Sheriff s Department, traveled to Springfield. Agent Williams and Detective Hite visited Kleypas at the hospital where he had been admitted for treatment of his wounds. When they inquired of Kleypas how he was doing, Kleypas told them that it would have been better if “this” had worked and held up his bandaged arms. He told them he did not wish to talk to them at that time.
Upon release from the hospital, Kleypas was taken to the Green County, Missouri, Sheriff s Office for booking and was read his rights. He waived extradition to Kansas. Kleypas told Agent Williams and Detective Hite that they should wait to question him until during the ride back to Kansas. Kleypas, Detective Hite, and Agent Williams returned to Girard, Kansas, by car.
In the car, Kleypas admitted that he had killed C.W. Kleypas told the officers that he had entered the front door after ringing the door bell. C.W. answered the door, and Kleypas forced his way in with a filet knife. He forced C.W. into her bedroom and tied her to a chair. When he attempted to tie her hands, she panicked. She told him that if he would leave she would give him a head start before calling police. After being told he had been identified on the caller ID, Kleypas admitted making the telephone calls to the apartment. He said that he had called the night prior to the murder but did not recall saying anything.
Once in Girard at the Crawford County Sheriff s Office, Kleypas agreed to give the officers further details. Kleypas said he first attempted to enter the apartment through the front window. He had taken the screen off and the window broke. He took the screen to a trash can in the alley and then went to the front door. When Kleypas rang the bell the first time, C.W. peered out and called out for Mike, her fiancee. She said she knew it was Mike and said he should stop horsing around. She went back inside and Kleypas rang the bell again. When she answered, he forced himself inside. He said he might have slapped C.W. and that they ran into the couch in the living room. He forced her into the bedroom and made her undress. Kleypas used socks to bind C.W. He attempted intercourse but was unable to obtain an erection. He said he penetrated her vaginally with his fingers. He also admitted that he had been watching C.W. and her roommate and had been making obscene telephone calls to them.
After he put his fingers into her vagina, Kleypas allowed C.W. to dress. She asked him to leave and said she would give him a head start. At some point, C.W. said she recognized him as the man who lived in the green house down the street. After he unplugged the telephone from the wall, there was a struggle because C.W. did not want her hands bound.
When C.W. became free of the chair, Kleypas tried to strangle her with his hands but that did not work. He took a piece of clothing and stuffed it into her mouth. When that was not successful, Kleypas found the knife and stabbed her repeatedly in the chest. He then took the engagement ring from her finger and some of the contents from her purse and left the apartment. Kleypas said he later disposed of some of the clothing he wore that night and other items by dropping them into a dumpster at a Springfield car wash, but he was uncertain what happened to the ring and it was never found.
Kleypas told the officers that after the murder he returned to his apartment, took a shower, and waited for stores to open before writing checks and leaving town. Kleypas also admitted taking the camera. He said that he wanted to plead guilty and spend the rest of his life in prison.
Kleypas was asked to make a written statement, but when he learned that it would take time to get a stenographer, he agreed to a videotaped statement if it was kept short, if he was not interrogated on tape, and if he could review the questions before taping. During the videotaped statement, Kleypas added that after he had tied up C.W., he sat on the bed for a time thinking about what to do.
Kleypas was originally charged with first-degree murder, rape, aggravated criminal sodomy, aggravated robbery, aggravated burglary, burglary of a dwelling, and theft. He was notified in accordance with K.S.A. 21-4624(a) that the State would pursue the death penalty for capital murder.
The jury found Kleypas guilty of capital murder, attempted rape, and one count of aggravated burglary. Upon conclusion of the separate sentencing proceeding the jury, by unanimous vote, found beyond a reasonable doubt the following three aggravating circumstances: (1) Kleypas was previously convicted of a felony in which he inflicted great bodily harm, disfigurement, dismemberment, or death on another, (2) Kleypas committed the crime in order to avoid or prevent a lawful arrest or prosecution, and (3) Kleypas committed the crime in an especially heinous, atrocious, or cruel manner. The jury further found beyond a reasonable doubt that the existence of such aggravating circumstances were not outweighed by any mitigating circumstances which were found to exist. The jury determined that Kleypas should be sentenced to death. Kleypas filed a motion to recall the jurors and a motion for new trial which were denied by the trial court. Additional facts will be presented as necessary to address the issues raised.
PART I — GUILT PHASE
Kleypas raises the following issues challenging his convictions:
Ability to Present a Complete Defense Regarding Confabulation
Admissibility of Kleypas’ Confession
Validity of Search Warrant
Validity of Arrest Warrant
The Trial Court’s Failure to Suppress DNA Evidence
The Felony-Murder Jury Instruction
The Instruction on Attempted Rape
Failure to Instruct on Simple Battery
Instruction on Voluntary Intoxication
Instruction Regarding State’s Failure to Timely Notify Kleypas of Change in Testimony
Whether K.S.A. 21-3439(a)(4) Makes a Killing Occurring During an Attempted Rape Subject to the Death Penalty
Prosecutorial Misconduct in the Guilt Phase
Jury Misconduct
Sufficiency of Notice to Seek the Death Penalty and Failure to Provide a Pretrial Ruling on Whether Sufficient Evidence Existed to Support Aggravating Circumstances
Competency to Stand Trial
Removal of Prospective Juror Molden for Cause — United States Constitution.
Removal of Five Jurors for Cause — Kansas Constitution
Denial of a Separate Sentencing Jury
Alleged Judicial Misconduct During Jury Orientation
Alleged Batson Violation for Peremptory Strike Juror Wheeler
Cumulative Error in the Guilt Phase
Issue 1. Ability to Present a Complete Defense Regarding Confabulation
Before trial, a full evidentiary hearing was held on Kleypas’ motion to suppress his confession. The videotaped confession detailed Kleypas’ actions on the evening of March 29 and the early morning hours of March 30 when C.W. was murdered. The trial court determined that this videotaped confession was freely and voluntarily given. The confession was admitted at trial and shown to the jury.
At trial, Kleypas challenged the reliability and weight to be given to his confession. His expert witnesses sought to establish that he experienced a blackout during the evening and morning of the murder, that his memory of the events related by his confession was impaired, and that the events he related were at least in part supplied by the officers who interrogated him on the return trip to Kansas. More specifically, Kleypas claimed that his confession was, at least in part, the product of confabulation. Confabulation was explained in depth by Kleypas’ expert witnesses as the process where one who has little or no memory of events occurring because of a blackout will gather information from outside sources to fill in the gaps in memory.
Defense expert witness Dr. John Wisner, an associate professor of psychiatry at the University of Kansas School of Medicine, testified regarding the concept of confabulation:
“Confabulation is what happens when the brain tries to make up for missing information, tries to fill in missing pieces of data. It is part of a natural reflex that we use just, for example, in vision. There is a hole if you cover up one eye and use only one eye to look at the world, diere is actually a hole in your visual field where the nerve comes into the eye. There [are] no sensors there for light. But if you close your eye and look, you are not aware that there is a big hole there. The brain fills in missing information. It slides stuff in from the edges so that we are not aware of the gap. That is what also happens when diere is a memory lacuna [hole], when there is a gap in memory, the brain literally will try to bring in extraneous information, litde bits and pieces from elsewhere so as to ignore or fill in this big chuckhole in memory.”
Dr. Wisner thoroughly explained the process involved in confabulation to the jury. According to Dr. Wisner, there is a danger in questioning someone who has experienced a blackout by using leading questions or hypothetical questions because the question will contain a part of the answer. He described for the jury the difference between lying and confabulation:
“Well, they are completely different. In lying a person knows information and either contradicts it or makes something else up. It is a conscious, knowing act. Confabulation is literally a reflex. It is going to happen whether you want it to or not and if die circumstances are right, it is almost sure to happen.”
Blackouts and confabulation were thoroughly explored in Kleypas’ direct examination of Dr. Wisner. No limitation was imposed by the court on his testimony.
Following Dr. Wisner, Kleypas called another clinical professor of psychiatry from the University of Kansas School of Medicine, Dr. Ekkehard Othmer. During direct examination, Dr. Othmer was asked if in his medical opinion Kleypas had suffered a blackout during the period of time surrounding the 29th and 30th of March 1996. An objection was made by the State on the basis that the answer to this question related to the criminal responsibility of Kleypas for the acts he committed on those dates. More specifically, the State argued that while Kleypas had initially notified the State under the provisions of K.S.A. 22-3219 that he would rely on evidence of a mental disease or defect excluding criminal responsibility, Kleypas later withdrew this notice.
An extended hearing was conducted outside the presence of the jury on the admissibility of the answer of Dr. Othmer. Notwith standing the argument of Kleypas that he was seeking admission of Dr. Othmer’s answer to attack the credibility of his confession on the basis that it was a product of confabulation, the trial court viewed admission of such evidence as an attempt by Kleypas to rely on the defense of lack of mental state to establish his lack of criminal responsibility for his acts on the 29th and 30th of March 1996. Had Kleypas not withdrawn his notice to rely on the mental disease or defect provisions of K.S.A. 22-3219, the State would have been entitled to have Kleypas examined by a psychiatrist of its own choosing to rebut such evidence. The court viewed Kleypas’ attempt as an indirect attempt to circumvent the provisions of K.S.A. 22-3219, by raising a very technical defense which the trial court characterized as “fundamentally unfair” and as an ambush. After much discussion and argument, the trial court concluded:
“The Court would deny that and the Court will order as follows. The defendant will be allowed to provide information to the jury through Dr. Othmer’s testimony regarding whether or not the defendant was suffering from some sort of black out during that period of time that he gave his confession or his statement so as to induce him or so as to make him prone to confabulate. The defendant seeks to go further than that and explore through this testimony the defendant’s state of mind at the time of the matter in question that violates 22-3219. The defendant previously had filed a notice of intent to rely upon the defense of lack of mental state. The defendant later withdrew that request and the court ordered that pursuant to that statute the State would have the opportunity to subject the defendant to its own expert examination.
“Upon being advised of that, the defendant withdrew its notice of the intent to rely upon that statute. The defendant seeks to essentially through the back door get into evidence that sort of information. This is fundamentally unfair to the State. The State has not had the opportunity to examine the defendant as to his state of mind. This is complex information, complex testimony. The State has a right to examine the defendant and, frankly, Mr. Moots [defense counsel], the Court continues to believe that no matter how you phrase it, you are trying to introduce testimony regarding the defendant’s state of mind the day in question and, in fact, you have told me you were wanting to introduce the defendant’s state of mind on the 29th and 30th.
“If you can limit it to the — to April 2 when the defendant gavé his alleged statement and whether or not he was suffering from some sort of mental state that would make him prone to confabulate on April 2,1 will allow that but anything beyond that you’ve gone too far and the Court would not specifically allow that.”
Thus, Kleypas was prevented by the ruling of the court from inquiring about his state of mind on the 29th and 30th of March, but was allowed to inquire into his state of mind subsequent to the time of the offenses. The crux of Kleypas’ claim is that he was denied his constitutional right to present a complete defense because the court precluded meaningful questioning of Dr. Othmer regarding whether Kleypas’ statement to the police was confabulated.
After the trial court’s ruling, direct examination of Dr. Othmer continued and Kleypas was able to fully develop his theory that his confession was in part the result of confabulation. Dr. Othmer testified at length concerning confabulation, indicating to the jury that the method of asking questions used in Kleypas’ case, including urging him that the two families needed answers and that confession was good for the soul, increased the likelihood of confabulation. Dr. Othmer testified that Kleypas was much more susceptible to confabulation than an ordinary person. Finally, defense counsel asked Dr. Othmer:
“Q. Did the recorded interview that you watched, the twelve minute videotape, allow you to make any medical or psychiatric conclusions about what you believed occurred during the unrecorded statements?
“A. It is clearly a rehearsal. It is clearly picking out certain things from what went on — what went on before because these questions connect poorly. In a live interview, in a naturalistic interview, you pick up the clues from the — from the respondent and this is here missing as I showed with this one question like out of the blue these questions seemed to comment, you wonder where is the connection, where is it coming come from, what does a suspect tell you to prompt such a question.
“Q. Without knowing the exact form of the questions that were asked of Mr. Kleypas in the car, can you tell whether or not Agent Williams and Detective Hite provided him information that allowed him to confabulate parts of his statement to them?
“A. Yes, several of these questions contain information that Mr. Williams and Mr. Hite knew as a fact and they introduced that. Whether that is Mr. Kleypas’ true recollection or not is completely unclear.
“Q. Okay. So the form of the question is very important when you are dealing with somebody who may be confabulating at least parts of their statements?
“A. Absolutely. You want to be as open ended as possible and not suggest any facts.
“Q. Okay. And since there is no recording of the earlier statements, can you tell what information was implanted for Mr. Kleypas and what was his own autonomous recollection?
“A. Well, that is difficult to do. Each of the questions that he was asked may have been his recollection, may not have been his recollection, so it is so confounded with the interview technique, that the results are very questionable to me.”
With these facts in mind, we turn to our analysis of this issue. Our standard of review concerning this claimed error involves the interpretation of K.S.A. 22-3219, as well as a determination whether, based on the evidence of record, Kleypas was denied his constitutional right to present a complete defense.
K.S.A. 22-3219 provides:
“Evidence of mental disease or defect excluding criminal responsibility is not admissible upon a trial unless the defendant serves upon the prosecuting attorney and files with the court a written notice of such defendant’s intention to assert the defense that the defendant, as a result of mental disease or defect lacked the mental state required as an element of the offense charged.”
Kleypas initially invoked the above provision but then withdrew his notice prior to trial. The trial court concluded Dr. Othmer’s testimony as to a blackout at the time of the offenses charged amounted to evidence of mental disease or defect and was therefore inadmissible. At the same time, both Dr. Wisner and Dr. Othmer were given wide latitude in their testimony concerning confabulation. Dr. Othmer was allowed to give his opinion that Kleypas’ confession was in part the product of confabulation.
Our prior cases draw a clear distinction between a defense of insanity and voluntary intoxication. See In re Habeas Corpus Petition of Mason, 245 Kan. 111, 113, 775 P.2d 179 (1989). In Mason, we stated:
‘We have recognized that insanity and voluntary intoxication are two separate defenses. In State v. Seely, 212 Kan. 195, 200, 510 P.2d 115 (1973), we held the defendant was not entitled to an insanity instruction because the evidence showed ‘alcohol was the key factor in [the defendant’s] loss of control and the sina qua non of all of his difficulties.’ We held ‘ “mental incapacity produced by voluntary intoxication, existing only temporarily at the time of the criminal offense” ’ does not reach the level of insanity. 212 Kan. at 197.
“To hold that evidence of a temporary mental condition caused by voluntary intoxication requires the defense to plead insanity would be to abolish the distinctions between the two defenses clearly laid out by statute and our cases. No notice of an insanity defense is required where the evidence points only to a temporary mental state negating specific intent caused by the voluntary consumption of alcohol. The trial court thus erred in declaring a mistrial.” 245 Kan. at 113-14.
The trial court in Mason had ordered a mistrial because defense counsel had in its opening statement told the jury that the evidence would show that Mason was incapable of forming intent becaüse of his alcohol consumption. Similar to the trial court’s ruling in the case we now review, the court in Mason found that evidence supporting the defense theory of a blackout, including Mason’s previous history with alcohol, was evidence of mental illness amounting to insanity rather than simply evidence of voluntary intoxication. On appeal, this court reversed and drew a distinction between the defenses of insanity and voluntary intoxication, holding that evidence that a defendant suffered a blackout as a result of alcohol abuse, when introduced to show lack of intent, was not subject to the notice requirements of K.S.A. 22-3219. 245 Kan. at 114.
There is a difference between the claim of Kleypas and that in Mason. Kleypas’ claim of a blackout involved not only alcohol but chronic cocaine use and organic brain damage. These additional claims obviously influenced the trial court’s decision. Nevertheless, based on Mason and the cases cited therein, together with our consideration of K.S.A. 22-3219, we conclude that the trial court erred by not allowing Dr. Othmer to express his opinion as to whether Kleypas experienced a blackout at the time of the offenses.
The question we must answer is whether this error prevented Kleypas from presenting a complete defense and denied him a fair trial. See Crane v. Kentucky, 476 U.S. 683, 690-91, 90 L. Ed. 2d 636, 106 S. Ct. 2142 (1986) (holding that the exclusion of evidence which denied the defendant an opportunity to present a defense is subject to harmless error analysis).
In Crane, the prosecutor stressed in his opening statement that the Commonwealth’s case rested almost entirely on the defend ant’s confession. In response, defense counsel outlined what would prove to be the principal avenue of defense — that for a number of reasons, the defendant’s confession should not be believed because it was rife with inconsistencies. In response to the prosecutor’s motion in limine to exclude such testimony, ""the court expressly held that the defense could inquire into the inconsistencies contained in the confession, but would not be permitted to "develop in front of the jury’ any evidence about the duration of the interrogation or the individuals who were in attendance.” 476 U.S. at 686. The United States Supreme Court reversed on the basis that the defendant was denied due process of law. The Court noted that the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense and stated:
“That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant’s claim of innocence. In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor’s case encounter and ‘survive the crucible of meaningful adversarial testing.’ [Citations omitted].” 476 U.S. at 690-91.
Similarly, in U. S. v. Hall, 93 F.3d 1337 (7th Cir. 1996), the 7th Circuit Court of Appeals reversed the defendant’s conviction where the trial court did not allow expert testimony that the defendant’s personality disorder could cause the defendant to give a false confession. The trial court entirely excluded expert testimony from a psychologist on false confessions, the indicia experts have identified to demonstrate when a false confession is likely to occur, and the factors experts rely on to distinguish between rehable and unreliable confessions. The court further limited the testimony of a psychiatrist, allowing him to testify about the defendant’s mental condition but not about the defendant’s susceptibility to various interrogation techniques and his capability of confessing to a crime he did not commit.
Unlike Crane and Hall, in this case Dr. Wisner testified extensively on the psychiatric medical aspects of blackouts and the possibility of later confabulation. Dr. Othmer testified that it was his opinion that Kleypas’ confession was at least in part confabulated and gave the basis of his opinion. While Kleypas claims that the exclusion of testimony concerning his blackout on the night of the murder denied him die right to present his defense, he was able to show that he had been drinking before the crimes, that there was evidence of extensive cocaine use prior to the night of the murder, and that he suffered from organic brain damage, all of which increased his chances of a blackout and the likelihood tiiat the confession was the product of confabulation. When this evidence is considered with the testimony of Dr. Wisner and Dr. Othmer, it becomes clear that Kleypas was given the opportunity to convince the jury that his confession was in part confabulated. The limitations imposed by the court did not, in our opinion, prevent Kleypas from presenting his theory of defense to die jury, and we are able to conclude beyond a reasonable doubt that the error had little if any effect on the outcome.
Issue 2. Admissibility of Kleypas’ Confession
Kleypas filed a motion to suppress statements made to officers during the automobile trip from Missouri to Kansas, and the videotaped statement made to officers after he arrived in Girard. He claims that these statements were involuntary. Hearings were held during 3 days in September 1996 on Kleypas’ motion. The trial court denied Kleypas’ motion in a written opinion setting forth its findings of fact and conclusions of law. Thereafter, Kleypas raised additional contentions concerning his statements which were denied by the trial court after a further hearing on May 16, 1997.
Kleypas raises three points in this appeal: (1) His statements made shortly after his release from the hospital were involuntary because of his mental condition and an alleged threat by the interrogating officer, (2) the officers ignored his attempt to end the interrogation, and (3) his statements should be stricken because of alleged misconduct on the part of the State.
The standard of review to be applied in assessing Kleypas’ claims is well established:
“Factors to be considered in determining whether a confession is voluntary include: (1) the accused’s mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused on request to communicate with the outside world; (4) the accused’s age, intellect, and background; and (5) the fairness of the officers in conducting the investigation. See State v. Esquivel-Hernandez, 266 Kan. 821, 975 P.2d 254 (1999); State v. Speed, 265 Kan. 26, 34-35, 961 P.2d 13 (1998). Voluntariness of a confession is determined from the totality of the circumstances, and where a trial court conducts a full prehearing on the admissibility of extrajudicial statements by the accused, determines the statements were freely and voluntarily given, and admits the statements into evidence at trial, appellate courts accept that determination if supported by substantial competent evidence and do not attempt to reweigh the evidence. [Citation omitted.]” State v. McCorkendale, 267 Kan. 263, 270-71, 979 P.2d 1239 (1999).
The trial court’s determination that Kleypas’ statements were made freely and voluntarily is supported by substantial competent evidence. In making its decision, the trial court considered all factors relating to voluntariness as set forth by this court in Esquivel-Hemandez and Speed.
The trial court’s decision did not expressly address Kleypas’ second allegation that the officers ignored his attempt to end the interrogation. However, we find no merit in this contention. Kleypas makes reference to his statement made during the ride from Missouri to Kansas, which was recorded. In his statement, Kleypas said: “I think that might be all for you.” He claims that this statement constituted an unambiguous assertion of his desire to end the interview. We disagree and conclude that the above statement, either standing alone or in context, was not an unambiguous assertion of a desire to end the interview.
‘When a suspect makes a statement which may be ambiguous as to whether the suspect is asserting a right to remain silent, the interrogator may, but is not required to, ask questions to clarify and instead may continue questioning. [Citations omitted.]” McCorkendale, 267 Kan. at 273. Kleypas did not unambiguously assert his right to remain silent, Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975), and State v. Matson, 260 Kan. 366, 375, 921 P.2d 790 (1996), which would have required the officers to ‘scrupulously honor’ that right and cease the interrogation, were not implicated. Instead, his statement was at best ambiguous, thus, permitting the officers to continue their questioning or make an attempt to clarify Kleypas’ meaning.
Finally, Kleypas claims that his statements made during the ride back to Kansas from Missouri should be struck because of misconduct on the part of the State. After the court’s original ruling on the motion to suppress, the audiotape of the trip back was enhanced by the Federal Bureau of Investigation (FBI). The enhanced version included one of the officers in the car saying: “Are we going to have to get out and walk?” Kleypas filed a supplemental motion to suppress, arguing that this phrase constituted a threat that he would be forced to get out and walk if he did not confess. At the hearing, KBI Agent Williams could not recall making such a statement. Ultimately, Detective Hite recalled that he had made the statement in reference to the small amount of gas left in the car. The court held that the statement was not a threat.
However, after the hearing, Agent Williams listened to the tape and at trial testified that he was the one who had made the statement. The State made no attempt to communicate this to defense counsel. Kleypas asserts that this misconduct on the part of the State should have been sanctioned by suppressing the confession.
The trial court concluded with ample evidentiary support in the record that there was no coercive interrogation of the defendant and no purposefully false testimony by the State that would invalidate the defendant’s statement. The record is devoid of evidence to suggest that there was bad faith or a deliberate withholding of the change in Agent Williams’ testimony by the prosecution. The court ultimately instructed the jury that it could consider the State’s failure to notify defense counsel of the change in testimony when determining the credibility of the witnesses. The findings of the trial court are supported in the record and there is no evidence to support exclusion of Kleypas’ confession. We conclude that the court did not err in admitting Kleypas’ confession.
Issue 3. Validity of Search Warrant
The trial court found that the search warrant was invalid and not cured by the affidavit in support of the warrant, but that the good faith exception applied and suppression of all the evidence uncovered was not warranted. Kleypas contends that the trial court erred in failing to suppress all of the items taken in the search of his residence. He argues that the search warrant was invalid because it failed to list the items to be seized, that this failure was not cured by the affidavit, and that the officers far exceeded the scope of the search, thus, rendering the good faith exception unavailable.
The factual findings of the trial court are not in dispute. “When the facts material to a decision of the court on a motion to suppress evidence are not in dispute, the question of whether to suppress becomes a question of law. [Citation omitted.] An appellate court’s scope of review on questions of law is unlimited.” State v. Anderson, 259 Kan. 16, 18, 910 P.2d 180 (1996).
A search warrant was issued for Kleypas’ residence at 117 W. Lindburg in Pittsburg. The affidavit in support of the search warrant specifically fisted the items to be seized with particularity: “[T]race evidence from the murder victim . . . including but not limited to hair fiber of the [victim], fabric fiber from the clothing of the [victim], . . . any trace evidence from the body, blood from the victim, [and] weapons used in the murder.” However, the portion of the actual warrant which references the items to be seized was left blank. When officers at the scene noticed the blank portion of the warrant, Officer Rosebrough, the attesting officer, brought the supporting affidavit to 117 W. Lindburg. After the officers discussed the omission and reviewed the affidavit, they decided the warrant was valid because the supporting affidavit fisted the items to be seized with particularity. The specific items were discussed so the officers would know exactly what to seize. Officer Rosebrough did not enter 117 W. Lindburg because of the adopted policy that anyone entering the crime scene at 113 W. Lindburg would not enter the one at 117 W. Lindburg to prevent cross-contamination.
The officers found a crack pipe in a ceiling duct located in a public hallway outside the door to Kleypas’ apartment.
Upon entering the apartment, officers photographed the interior, then exited and sealed the apartment awaiting KBI lab analysts. KBI lab technicians entered the apartment later the same day, March 31, 1996, and recovered various items of potential evidence including alleged.blood residue.
Officers then reentered the apartment on April 3 to complete the search and specifically to seize the items listed on the affidavit. By this time, the officers were aware that Kleypas had given a statement claiming that he discarded the weapon.
During the search, officers seized items specifically listed and items with apparent blood residue on them. Some item? such as shoes and clothing were seized to determine if any blood residue or other trace evidence might be found. Other items such as the telephone answering machine with cassette and videotapes were seized to determine if they revealed any connection between Kleypas and C.W. The officers were aware at this time that C.W.’s caller ID showed a call from Kleypas’ apartment on the night of the homicide.
Officers also seized several boxes containing Kleypas’ personal effects such as memorabilia, pictures of Kleypas and others, private papers, jewelry, and other mementos as revealed in the inventory. The trial court found these items were seized because they contained documentation verifying Kleypas as the occupant of the apartment. Though not all this paraphernalia proved identity, the officers did not individually examine eveiy item prior to seizure; rather, if a box or packet contained items showing the identity of the occupant of the apartment, the officers seized the entire box or packet. The supervisor of the search team, KBI Agent Adams, believed all items seized had potential evidentiary value.
Officers also found drugs and drug paraphernalia during the search.
The trial court concluded that while an affidavit could be used to cure an insufficient description of the items to be seized in the search warrant, the affidavit must be referenced in the warrant to do so. The court also found that while the officers exceeded the scope of the items described in the affidavit, this conduct did not require the suppression of all the evidence seized. Rather, the trial court ordered that any items not contained in the affidavit be suppressed.
Both the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights protect the rights of the people against unreasonable searches, and both provide that “no [w]arrant[s] shall issue, but upon probable cause, supported by [o]ath or affirmation, [and] particularly describing the place to be searched and the persons or [property] to be seized.” U.S. Const, amend. IV; Kan. Const. Bill of Rights, § 15. K.S.A. 22-2502(a) also requires a search warrant to particularly describe a person, place, or means of conveyance to be searched and things to be seized.
“The purpose of the constitutional requirement that search warrants particularly describe the place to be searched and the person or properly to be seized is to prevent general searches and the seizure of items at the discretion of the officer executing the warrant.” State v. LeFort, 248 Kan. 332, Syl. ¶ 1, 806 P.2d 986 (1991). “ ‘[I]t is constitutionally required that a search warrant shall “particularly” describe the place to be searched. Thus general or blanket warrants which give the executing officers a roving commission to search where they choose are forbidden.’ (Emphasis added.)” 248 Kan. at 335 (quoting State v. Gordon, 221 Kan. 253, 258, 559 P.2d 312 [1977]). This particularity requirement is equally applicable to the specificity in the items to be seized. See State v. Dye, 250 Kan. 287, 293, 826 P.2d 500 (1992).
The question of whether an affidavit which does list the place to be searched or the items to be seized with particularity may be sufficient to cure an inadequate description in a search warrant has been answered in different ways by different jurisdictions and there is no real universal agreement. See U. S. v. Morris, 977 F.2d 677, 681 n.3 (1st Cir. 1992); U. S. v. George, 975 F.2d 72, 76 (2d Cir. 1992); United States v. Johnson, 690 F.2d 60, 64 (3d Cir. 1982); U S. v. Gahagan, 865 F.2d 1490, 1496-98 (6th Cir. 1989); U. S. v. Tagbering, 985 F.2d 946, 950 (8th Cir. 1993); U. S. v. Towne, 997 F.2d 537, 548 (9th Cir. 1993); United States v. Wuagneux, 683 F.2d 1343, 1351 n.6 (11th Cir. 1982); U. S. v. Maxwell, 920 F.2d 1025, 1031-32 (D.C. Cir 1990); People v. Staton, 924 P.2d 127, 132 (Colo. 1996); State v. Balduc, 514 N.W.2d 607, 610 (Minn. App. 1994); State v. Stenson, 132 Wash. 2d 668, 696, 940 P.2d 1239 (1997).
In some cases, in order for an affidavit to cure a warrant which is defective for lack of specificity, the affidavit must be incorporated by reference in the warrant and present at the search. See Towne, 997 F.2d at 548; Morris, 977 F.2d at 681 n.3; Maxwell, 920 F.2d at 1031-32; Johnson, 690 F.2d at 64; Staton, 924 P.2d at 132; Balduc, 514 N.W.2d at 610. The court in Towne noted that this two-step rule serves two purposes. It assures that the affidavit actually limits the discretion of the officers executing the warrant and provides the person being searched of notice of the specific items the officer is entitled to seize. 997 F.2d at 548. In others, express incorporation is not necessary if the affidavit is available at the scene. See Gahagan, 865 F.2d at 1496-98; Tagbering, 985 F.2d at 950. See also Wuagneux, 683 F.2d at 1351 n.6 (affidavit sufficient if either incorporated by reference, attached, or present at the scene). In still others, the affidavit must be actually attached to the warrant and incorporated in it. See George, 975 F.2d at 76; Stenson, 132 Wash. 2d at 696.
In Kansas, we have held that an affidavit may cure an omission in the search warrant even though the affidavit is not attached to the warrant or present at the scene, when the affiant was one of the executing officers. See Dye, 250 Kan. at 294-95; LeFort, 248 Kan. at 341 (both cases involving a search warrant that did not sufficiently describe the property to be searched.) In LeFort, we stated:
“In determining whether the description given the executing officer in the warrant was sufficient, the initial examination is directed to the description stated in the warrant. However, if the description in the warrant is inadequate due to a technical irregularity, the focus then shifts to the description contained in the application or affidavit for the warrant if the officers were able to use that description to execute the search warrant. When the officer executing the search warrant is the affiant who described the property to be searched, and the judge finds there was probable cause to search the property described by the affiant and the search is confined to the area which the affiant described in the affidavit, the search does not affect the substantial rights of the accused and is in compliance with the Fourth Amendment of the Constitution of the United States and Section Fifteen of the Kansas Bill of Rights.” 248 Kan. at 341.
In the case at hand, although the affiant, Officer Rosebrough, did not actually execute the search warrant, he was present at the scene with the affidavit and the officers who executed the search warrant were briefed on the affidavit so they would know what to seize. There is no appreciable difference between the situation in this case and those in LeFort and Dye. Indeed, the officers had more information in the case at hand because even though the affiant was not actually taking part in the search, he was at the scene along with the affidavit, which was not actually present in either LeFort or Dye. See Dye, 250 Kan. at 294. We, therefore, hold that where the affidavit contains a particularized description of the items to be seized; the affiant and the affidavit are both present at the scene of the execution of the search warrant, even if the affiant is not the person executing the search warrant; and the officers executing the search warrant are briefed as to the items listed in the affidavit, the description in the affidavit cures a deficiency in the description of the search warrant. The warrant was, therefore, valid, and the trial court erred in finding otherwise.
The question remaining is whether the seizure of items outside the scope of the warrant requires suppression of all the evidence seized. “When law enforcement officers grossly exceed the scope of a search warrant in seizing property, the particularity requirement is undermined and a valid warrant is transformed into a general warrant thereby requiring suppression of all evidence seized under that warrant.” U.S. v. Medlin (Medlin II), 842 F.2d 1194, 1199 (10th Cir. 1988). See U.S. v. Foster, 100 F.3d 846, 849-50 (10th Cir. 1996). However, “[a]n ‘[ujnlawful seizure of items outside a warrant does not alone render the whole search invalid and require suppression of all evidence seized, including that lawfully taken pursuant to the warrant.’ [Citations omitted.]” Gahagan, 865 F.2d at 1496. Unless there is a flagrant disregard for the terms of the warrant, only the improperly seized evidence, rather than all the evidence, need be suppressed. See Waller v. Georgia, 467 U.S. 39, 43 n.3, 81 L. Ed. 2d 31, 104 S. Ct. 2210 (1984); United States v. Medlin (Medlin I), 798 F.2d 407, 411 (10th Cir. 1986); Wuagneux, 683 F.2d at 1354.
After consideration of the evidence in this case, we agree with the trial court’s suppression of only those items not mentioned in the affidavit. Although there were items seized outside the scope of the warrant, the officers’ conduct did not evidence a “flagrant disregard” for its terms. Many of the items taken were taken because they identified Kleypas as the owner of the property or be cause they were in boxes with other items. However, there is no indication that the search rose to the level which the courts in Medlin II and Foster found to justify blanket suppression. See Medlin II, 842 F.2d at 1195-96 (667 items of property not identified in the warrant versus approximately 130 firearms seized in accordance with the warrant); Foster, 100 F.3d at 850 (officers admitted taking “anything of value” whether or not contained in the warrant). Under the facts of this case, blanket suppression was not warranted, and the trial court correctly suppressed only those items seized which were not identified in the search warrant.
Issue 4. Validity of Arrest Warrant
Crawford County Attorney Barry Disney based the warrant for Kleypas’ arrest on the allegation of a rape that occurred in January 1994, rather than on the murder of C.W. Before the trial court and now on appeal, Kleypas claims that the affidavit in support of his arrest warrant omitted material matters and that the trial court erroneously relied on hearsay evidence at the suppression hearing. Thus, Kleypas claims that the arrest was illegal and that the trial court erred by denying his motion to suppress his statement and all other evidence derived from the arrest.
In order to analyze this issue, it is necessary to set forth facts regarding the alleged 1994 rape. The victim, D.J., was Kleypas’ live-in girlfriend. The police were dispatched to the apartment that D.J. shared with Kleypas where she claimed Kleypas held her hostage for an hour and a half, threatened her with a knife, and raped her by digital penetration. The officers taking the report noted that D.J. appeared to have been drinking and may have been intoxicated. The officers noted also that D.J. appeared somewhat confused about what had happened and might not be telling the true story. There was also some inconsistency in D.J.’s story regarding whether Kleypas had a knife. At the time, Disney declined to prosecute the rape.
The affidavit filed by Disney in support of an arrest warrant based upon the 1994 incident provided:
“That on 1-23-94 Pittsburg Police received a call from a [D.J.]. Officer Joseph Head responded to [D.J.’s] location which was a residence just north of 1706 S. Pine. [D.J.] advised Head that her and her boyfriend, Gary W. Kleypas, had been to J.B.’s Bar & Grill in Pittsburg, Kansas. After leaving J.B.’s they went to the home they mutually shared located at 1706 S. Pine, Pittsburg, Kansas. [D.J.] advised that once at the home she and Kleypas began to argue. [D.J.] advised Head that Kleypas had lost control’ and held her hostage in the house for 1.5 hours. That during this 1.5 hours he had threatened her and had put his hands around her throat. [D.J.] further advised that Kleypas penetrated her rectum and vagina with his fingers. [D.J.] advised Head that she did not give Kleypas permission to put his finger in her rectum or vagina.”
After a full and complete hearing, the trial court issued its memorandum decision finding that Disney declined to prosecute the rape in 1994 because he believed the case would be difficult to win and not because there was insufficient probable cause to support charges. The trial court further found that the following factors involving a reevaluation of the case with additional information prompted the reversal of Disney’s position: (1) Disney was advised by the Pittsburg Chief of Police that he should have filed the rape charge in 1994, (2) KBI Special Agent Delaney interviewed D.J. after Kleypas became a suspect in C.W.’s death and indicated that D.J. still maintained that Kleypas had raped her in 1994, and Delaney stated that she would not be a “bad witness,” (3) Delaney was able to clear up any confusion over whether Kleypas had a knife during the 1994 incident, (4) Kleypas was a suspect in both the 1994 rape and C.W.’s murder, which had apparent sexual overtones, and (5) Kleypas had been convicted and incarcerated in Missouri for a murder with sexual overtones.
Where a defendant attacks the affidavit supporting an arrest warrant based on the omission of material information, he or she must show: (1) The omission was deliberate, and (2) the omission was material. An omission is material if the original affidavit together with the previously omitted information would not support a finding of probable cause. State v. Breazeale, 238 Kan. 714, 725, 714 P.2d 1356, cert. denied 479 U.S. 846 (1986). Probable cause exists if, under the totality of circumstances as set forth in the affidavit, a fair probability exists that a crime has been committed and that the defendant has committed it. 238 Kan. at 726.
At trial, Kleypas submitted 15 alleged omissions. On appeal, he now relies upon the following three omissions from the affidavit which he contends cast doubt on the veracity of the victim’s allegation of rape: (1) The victim had provided inconsistent statements as to whether a knife had been used, (2) the victim had been drinking and could have been intoxicated, and (3) the investigating officer had concluded that the victim appeared confused and might not be telling the truth.
Our scope of review in regard to the alleged error is limited to determining whether substantial competent evidence supports the trial court’s findings. Breazeale, 238 Kan. at 724. The trial court, in a well-reasoned opinion, specifically examined each alleged omission in the affidavit, outlined all the evidence relating to probable cause, and found that there was substantial competent evidence to support the issuance of the warrant even considering the omissions. The findings and conclusions of the trial court are amply supported by the record.
Kleypas also contends that the trial court incorrectly relied on inadmissible hearsay at the hearing on the motion to suppress, specifically, Disney’s testimony regarding Delaney’s conversation with D.J. However, it is clear that the trial court relied on the evidence not to prove the truth of the matter asserted therein but to show its effect on Disney’s decision to file the charges in 1996 that he had not filed in 1994. As such, the testimony was not hearsay. See K.S.A. 60-460.
Under these circumstances, applying our standard of review, we affirm the trial court’s denial of Kleypas’ motion to suppress for lack of probable cause for the arrest warrant.
Issue 5. The Trial Court’s Failure to Suppress DNA Evidence
Kleypas argues that the trial court erred in failing to suppress the State’s evidence regarding DNA testing by the FBI where the prosecutor failed to inform the FBI of the court’s order to exercise good faith in using only that portion of any item necessary for testing. Kleypas contends that because the FBI consumed all the material in its testing, suppression is warranted.
The State sent numerous items to the FBI laboratory for DNA testing. Kleypas requested that the trial court allow him to also examine the evidence. The trial court, in response, made the following order:
“[T]he State can conduct testing of evidentiary objects that consumes those objects, however, there is no need to simply destroy items of evidence. . . . You are free to conduct whatever testing you deem appropriate. Now, I will ask, indeed; I will order the State to exercise good faith. Don’t unduly consume an evidentiary item. Use that portion of the item that is necessary for testing but don’t just arbitrarily consume something completely unless such is necessary for the testing. So don’t go overboard I guess is what I’m saying.”
Of the items sent, one was a sock that had been tied around the victim’s leg and another was a blue blanket recovered from beneath her body. The FBI totally consumed bloodstains from both items. At trial, the FBI serologist testified that there was a high statistical probability that Kleypas was the donor of the bloodstains found on the sock and blanket.
Prior to trial, Kleypas filed a motion to bar the DNA evidence. During hearings on tins motion, experts presented conflicting evidence regarding the necessity of consuming all the available material for DNA testing. The experts estimated the sample from the sock and blanket yielded 200 and 400 nanograms of material for testing respectively. Kleypas’ witnesses, Dr. Dean Stetler, a professor of microbiology, Chair of Genetics, and Director of Undergraduate Biological Sciences, at the University of Kansas, and Dr. Susan Egan, assistant professor in the University of Kansas Department of Microbiology and Program of Genetics, testified that a minimum of 50 nanograms was required to perform a Restriction Fragment Length Polymorphism (RFLP) test and only 250 picograms for the less specific Polymerase Chain Reaction (PGR) test. In Dr. Stetler’s opinion, the FBI did not exercise good faith in attempting to preserve at least the minimum amount of material for independent testing by the defense. However, Dr. Stetler stated that 200 nanograms is often a target amount to assure more reliable results.
In rebuttal, Dr. Thomas Callahan, the forensic examiner for the FBI, testified that as a matter of unwritten protocol in DNA testing, his laboratoiy uses 200 nanograms of matter. If the items come from a crime scene, however, the lab prefers to use 400 nanograms. Dr. Callahan testified that the State did not inform the FBI of the trial court’s order to use good faith in any correspondence; however, the FBI consumed all the material from the items as a matter of routine procedure.
When questioned, Dr. Callahan recalled a telephone conversation with prosecutor John Bork, asking that the FBI preserve some material if possible. However, Bork authorized the FBI to use all of the bloodstained material if necessary for its DNA testing. After objection, the trial court agreed to strike the telephone conversation and not consider it in the court’s decision.
In its memorandum decision, the trial court commented that the State should have clearly communicated the trial court’s order to the FBI lab. The court stated, however, that the real issue before the court was whether the FBI itself exercised good faith in testing the material. The trial court noted that all the experts were in agreement that a minimum of 50 nanograms was required for DNA testing but that the accuracy of the results increase as greater quantities are used.
The trial court found that the sample from the sock comprised approximately 200 nanograms and the sample from the blanket amounted to approximately 400 nanograms. The trial court further found that although the FBI consumed both items in the testing process, the FBI conducted its testing within its standard operating procedures. It was the FBI laboratory’s procedure to load a minimum of 200 nanograms, and optimally, 400 nanograms. The fact that this practice is not written manual procedure did not concern the trial court as long as the testimony supported a finding that the FBI did not process this case any differently than any other case handled by the lab.
Therefore, the trial court concluded that in light of the United States Supreme Court decision in Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988), and the trial court’s own finding that the FBI followed routine procedure in its handling of the test items, Kleypas’ motion to suppress should be denied. Nevertheless, the trial court was mindful of the State’s failure to inform the FBI of the court’s order to preserve a portion of the material if possible for independent testing. As this failure did not impact the propriety of the testing itself, the trial court found suppression was not appropriate. Instead, the trial court believed the jury should be instructed that it could consider the State’s failure to affirmatively request the FBI to make a good faith attempt to preserve a portion of the sample in determining the weight to be given the DNA results.
The trial court correctly applied Youngblood in resolving this issue. In Youngblood, the Arizona Court of Appeals reversed the defendant’s conviction on child molestation, sexual assault, and kidnapping based on the State’s failure to preserve semen samples from the victim’s body and clothing. The United States Supreme Court reversed, finding the State’s failure to preserve evidentiary material, absent a showing of bad faith, was not a violation of the Due Process Clause of the Fourteenth Amendment. The Court stated:
“The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady [v. Maryland, 373 U.S. 83 (1963)], makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. . . . We think that requiting a defendant to show bad faith on the part of the police both limits the extent of die police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating die defendant. We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” 488 U.S. at 57-58.
In Youngblood, the Court found the failure of the police to refrigerate the victim’s clothing and to perform tests on semen samples was, at worst, negligence. The Court noted that none of this information was concealed from the defense and that the evidence, such as it was, was made available to the defense. As a result, the Court concluded there was no showing of bad faith. 488 U.S. at 58.
When reviewing a trial court’s decision as to the suppression of evidence, an appellate court normally gives great deference to the factual findings of the trial court. The ultimate determination of the suppression of the evidence is a legal question requiring independent appellate determination. State v. Vandiver, 257 Kan. 53, 58, 891 P.2d 350 (1995). The question of whether the State acted in bad faith is a question of fact. State v. Lamae, 268 Kan. 544, 551, 998 P.2d 106 (2000)."
Kleypas does not contest the trial court’s finding that the FBI acted in good faith. Rather, he directs fault at the State for the FBI’s failure to preserve material for independent DNA analysis. Despite Kleypas’ attempt to focus solely on the State’s conduct, the FBI’s good faith was relevant to the trial court’s decision. The trial court clearly considered the State’s failure to inform the FBI as part of the circumstances surrounding the DNA testing but found it insufficient to require suppression. This decision is supported by substantial competent evidence.
Based on the United States Supreme Court’s decision in Young-blood and the facts of this case, we hold that the trial court did not err in failing to suppress the DNA evidence.
Issue 6. The Felony-Murder Jury Instruction
The trial court gave an instruction on felony murder as a lesser included offense of capital murder. Kleypas contends that the trial court erred, however, in refusing to instruct the jury that a felony murder could occur in the “flight from” an inherently dangerous felony.
K.S.A. 21-3401(b) defines felony murder as the killing of a human being committed “in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.” The instruction given by the trial court omitted the term “flight from” because the trial court found that there was no evidence to support it. Kleypas contends that the jury could have determined that he killed C.W. during his “flight from” an inherently dangerous felony and that the trial court’s refusal to include the term “flight from” violated his Sixth Amendment right to a fair trial.
A criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence as long as: (1) the evidence, when viewed in the light most favorable to the defendant’s theory, would justify a jury verdict in accord with that theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense. State v. Williams, 268 Kan. 1, 15, 988 P.2d 722 (1999). An instruction on a lesser included offense is not proper if from the evidence the jury could" not reasonably convict of the lesser offense. State v. Robinson, 261 Kan. 865, 883, 934 P.2d 38 (1997).
Kleypas argues that he was entitled to the “flight from” part of the instruction because there was evidence that he committed the murder to facilitate flight and that the State sought the death penalty based on an aggravating factor which involved flight. He contends that the State’s reliance on the aggravating factor that “[t]he defendant committed the crime in order to avoid or prevent a lawful arrest or prosecution” mandates the “flight from” instruction. See K.S.A. 21-4625(5). In State v. Purnell, 126 N.J. 518, 533-34, 601 A.2d 175 (1992), the New Jersey Supreme Court held that where a separate offense encompassed by the aggravating factor is, in itself, a basis for an alternative form of murder that is non-capital, a defendant is constitutionally entitled to have that alternative offered for jury deliberation in the guilt phase.
However, neither of these arguments requires the requested instruction. The terms “in the commission of,” “attempt to commit,” and “flight from,” as used in the felony-murder statute, are temporal requirements delineating when a killing may occur and still be part of the underlying felony. See State v. Hearron, 228 Kan. 693, 694-96, 619 P.2d 1157 (1980). That a murder was committed to facilitate escape or to avoid or prevent arrest or prosecution are matters of intent and, as such, are fundamentally different from the “flight from” requirement for felony murder. A murder may be committed in order to facilitate escape or to avoid or prevent an arrest or prosecution and still not occur during the flight from the crime. Similarly, a murder may occur during the flight from the crime but not have as its purpose the facilitation of escape or the avoidance or prevention of arrest or prosecution. The need for an instruction is instead based on the evidence in each particular case.
In the case at hand, there was no evidence from which a jury could reasonably have convicted Kleypas of felony murder based on the theory that the killing occurred during the “flight from” an inherently dangerous felony. In order to require such an instruction, there must be evidence that the killing occurred during flight from the scene of the felony. There was no such evidence in this case, and the trial court’s instruction was correct.
Kleypas also contends that trial court erred by not defining the phrase “in the commission of’ in the felony-murder instruction. He argues that the court should have defined the term “commission” to make it clear to the jury that a killing which occurred subsequent to the underlying felony could still be considered felony murder. He argues that such an instruction was necessary in light of the jury instruction on capital murder that used the terminology “in the commission of or subsequent to” the underlying offense.
Kleypas admits that he failed to request such an instruction. We have held:
“No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of his or her objection, unless the instruction or the failure to give the instruction is clearly erroneous. Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Cravatt, 267 Kan. 314, Syl. ¶ 1, 979 P.2d 679 (1999).
Despite Kleypas’ contention, we conclude that the instruction as given properly stated the law and that the jury could not have been misled by the failure to define the term “commission.”
“When reviewing challenges to jury instructions, the instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.” State v. Aikins, 261 Kan. 346, Syl. ¶ 25, 932 P.2d 408 (1997).
Therefore, we conclude that the instruction given was not clearly erroneous.
Issues 7 and 8. The Instruction on Attempted Rape
Kleypas argues that the trial court failed to include an essential element in its instruction on attempted rape. He admits that he failed to object to this instruction or to request a different instruction and, therefore, our review is limited to determining whether the instruction as given was clearly erroneous. Cravatt, 267 Kan. 314, Syl. ¶ 1.
K.S.A. 21-3301(a), defining attempt, states: “An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” (Emphasis added.) The trial court, however, instructed the jury on the crime of attempted rape as follows:
“If you find the defendant is not guilty of rape, you shall consider if he is guilty of an attempt to commit the crime of rape. To establish this charge, each of the following claims must be proved:
“1. That the defendant performed an act toward the commission of the crime of rape;
“2. That the defendant did so with the intent to commit the crime of rape;
“3. That the defendant failed to complete commission of the crime of rape;
“4. That this act occurred on or about the 30th day of March, 1996, in Crawford County, Kansas.” (Emphasis added.)
Kleypas contends that because the instruction given to the jury did not make it clear that an “overt” act was required, the jury might have incorrectly relied on mere acts of preparation to satisfy die overt act requirement.
We have held that an overt act is an essential element of an attempted crime. State v. Collins, 257 Kan. 408, 418, 893 P.2d 217 (1995); State v. Robinson, 256 Kan. 133, 136, 883 P.2d 764 (1994); State v. Gobin, 216 Kan. 278, 280-82, 531 P.2d 16 (1975). Mere preparation is not sufficient to constitute an overt act. Gobin, 216 Kan. at 281-82.
The instruction given by the trial court was taken verbatim from PIK Crim. 3d 55.01. We are puzzled as to why the PIK instruction does not use the word “overt” in keeping with the language of the statute. However, even had the instruction used the word “overt,” it would not have alleviated the problem of which Kleypas complains. The word “overt” as used in conjunction with an attempt means: “An outward act, however innocent in itself, done in furtherance of a conspiracy, treason, or criminal attempt.” Blacks Law Dictionary 1130 (7th ed. 1999). The word “overt” used in combination with “act” would be no more definitive or descriptive of what acts a jury would be required to find in any particular case in order to support a conviction than the phrase “act towards the commission of a crime.”
We hold that the language of the instruction which required the jury to find that “the defendant performed an act toward the commission of the crime” sufficiently instructed the jury with regard to the crime, and the instruction was not clearly erroneous. Nevertheless, in order to further clarify the instruction in the future, we recommend that PIK Crim. 3d 55.01 be amended to insert the word “overt” immediately before the word “act” and to include a sentence which states: “Mere preparation is insufficient to constitute an overt act.”
Kleypas also contends, with regard to the instruction on attempted rape, that the instruction was clearly erroneous because it failed to specify the overt act which supported the conviction. Kleypas argues that the jury was required to be unanimous on the overt act which supported the attempted rape and the court either should have required the State to elect an overt act or given a unanimity instruction. Again, because Kleypas did not object to the instruction at trial, our review is limited to the determination as to whether the instruction given was clearly erroneous. Cravatt, 267 Kan. 314, Syl. ¶ 1.
We have held that in a multiple acts case where several acts are alleged and any one of them could constitute the crime charged, the jury must be unanimous as to which act or incident constitutes the crime. State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994). In such a case, either the State must be required to elect the particular criminal act upon which it will rely for conviction or the trial court must instruct the jury that all must agree on the underlying criminal act. 255 Kan. at 289-90. In contrast, in an alternative means case where a single criminal offense may be committed in various ways, there must be unanimity as to guilt on the crime charged, but unanimity is not required as to the means by which the crime was committed. In reviewing an alternative means case, the court must simply determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. 255 Kan. at 289-90.
However, the attempted rape charge at hand presents neither a multiple acts nor an alternative means situation. The possible overt acts need not themselves be illegal or chargeable as criminal offenses and, thus, this is not a multiple acts case. Nor are the overt acts alternative means of committing the offense. Rather, they are acts, however innocent in themselves, which signify and trigger liability for the offense of attempt. As such, there was no requirement that the jury be instructed as to a specific overt act. See State v. Thompson, 3 Kan. App. 2d 426, 430, 596 P.2d 174, rev. denied 226 Kan. 793 (1979). Therefore, the instruction given was not clearly erroneous.
Issue 9. Failure to Instruct on Simple Battery
Kleypas argues that the trial court erred in failing to instruct on simple battery as a lesser included offense of attempted rape. He contends that the evidence adduced at trial to prove attempted rape necessarily proved the offense of simple batteiy.
A trial court has the affirmative duty to instruct the jury on all lesser included offenses established by the evidence. Instructions on a lesser included offense must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant. State v. Ordway, 261 Kan. 776, 784, 934 P.2d 94 (1997). An instruction on an included offense is not proper if from the evidence the jury could not reasonably convict of the lesser offense. State v. Robinson, 261 Kan. 865, 883, 934 P.2d 38 (1997).
Based on the law in effect at the time the crime was committed, our analysis of whether simple battery was a lesser included offense of attempted rape is conducted under the rules laid out in State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988).
“[Fike] provides a two-pronged test for determining if there is a lesser included crime under K.S.A. 21-3107(2)(d). Under the first prong, the statutory elements of the crime charged and the alleged lesser included crime are examined. If all of the statutory elements of the alleged lesser crime will automatically be proved if the State establishes the elements of the charged crime, the alleged lesser crime is an included crime of the greater. 243 Kan. at 368. If no included crime is found under the first prong, there may still be an included crime under the second prong of the test. Under the second prong, the charging document is examined to determine whether the evidence that must be adduced at trial to prove the crime charged would also necessarily prove another crime. If another crime is necessarily proved by proving the charged crime, die former is an included crime. 243 Kan. at 368.” Williams, 268 Kan. at 17.
Simple battery was not a lesser included offense of attempted rape under the first prong of Fike. See State v. Arnold, 223 Kan. 715, 716-17, 576 P.2d 651 (1978) (holding simple battery not a lesser include offense of attempted rape under the elements test). Further, the State was not required to prove that Kleypas touched C.W. in a rude, insolent, or angry manner in order to prove attempted rape. All that was required was that the State prove some overt act toward the commission of rape. Under these circumstances, simple battery was not a lesser included offense of attempted rape, and the trial court did not err in failing to give such an instruction.
Issue 10. Instruction on Voluntary Intoxication
Kleypas raises two contentions with regard to the court’s instruction on voluntary intoxication. First, he argues that the instruction changed voluntary intoxication into an affirmative defense thereby improperly placing the burden upon Kleypas. Second, he contends that the instruction prohibited the jury from aggregating intoxication with other evidence of his mental disorder, which also affected his capacity to form the necessary intent.
As we have previously stated, our standard of review for these claims based upon Kleypas’ objection to the instruction given is well established:
“When reviewing challenges to jury instructions, the instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.” Aikins, 261 Kan. 346, Syl. ¶ 25.
Kleypas requested the following instruction, which tracked with the provisions of K.S.A. 21-3208(2):
“An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.”
The trial court rejected Kleypas’ request and instructed the jury as follows in accordance with PIK Crim. 3d 54.12-A:
“Voluntary intoxication may be a defense to the charge of Capital Murder, Premeditated First-Degree Murder, Second-Degree Murder, Attempted Rape, and the Aggravated Burglary allegedly occurring on March 30, 1996, where die evidence indicates that such intoxication impaired a defendant’s mental faculties to the extent that he was incapable of forming the necessary intent to kill as required in the Capital Murder, Premeditated First-Degree Murder, and Second-Degree Murder charges; and the necessary intent to commit a theft as required in the Aggravated Burglary charge, and the intent to commit rape as required in the Attempted Rape charge.”
In support of his first argument that the PIK instruction given changed voluntary intoxication to an affirmative defense, Kleypas relies upon our decision in State v. Ludlow, 256 Kan. 139, 883 P.2d 1144 (1994). According to Kleypas, we recognized in Ludlow that PIK Crim. 3d 54.12-A was a significant departure from the statutory language regarding voluntary intoxication in K.S.A. 21-3208(2), thus casting voluntary intoxication as an affirmative defense. This argument misinterprets our holding in Ludlow.
The issue in Ludlow involved the PIK instruction’s omission of “or other state of mind” where K.S.A. 21-3208(2) states that voluntary intoxication may be considered “when a particular intent or other state of mind is a necessary element to constitute a particular crime." Ludlow complained that premeditation was an “other state of mind.” We agreed with Ludlow and held that the district court’s use of PIK Crim. 3d 54.12-A which departed from the statutory language by omitting the phrase “or other state of mind” was error where the defendant is charged with premeditated murder. 256 Kan. at 147.
In tracking the change in the PIK instruction to determine when the removal of “or other state of mind” occurred, Ludlow referenced the pattern instruction approved in State v. Beebe, 244 Kan. 48, 60-61, 766 P.2d 158 (1988), noting that “the most obvious change [in the voluntary intoxication instruction] is in the lead-in declaration — voluntary intoxication changes from not being a defense to possibly being a defense.” 256 Kan. at 145. Ludlow did not state that this was error or that the language suggested by the defendant changed voluntary intoxication to an affirmative defense.
In addition to Instruction No. 12 on voluntary intoxication, the trial court instructed the jury in Instruction No. 13 that voluntary intoxication may be a defense to the extent Kleypas was incapable of forming the necessary state of mind of premeditation, following Ludlow. As part of Instruction No. 2, the trial court instructed: “The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty.” Instruction No. 8 again placed the burden of proof on the State:
“The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty.
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims made by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty.”
In Ludlow, this court read the voluntary intoxication instruction together with another instruction which stated that the State bore the burden of proving “ ‘the required criminal intent of the defendant’ and that ‘[t]his burden never shifts to the defendant,’ ” and found that the instructions properly advised the jury that “voluntary intoxication may be a defense if the evidence indicates that it rendered Ludlow incapable of forming the necessary intent, that the State had the burden of proving intent, and that Ludlow does not have a burden for showing lack of intent.” 256 Kan. at 150. In the case at hand, the instructions, read together, properly advised the jury that the State bore the burden to prove intent, and the instructions did not reheve the State of this burden or make voluntary intoxication an affirmative defense. We also note that the trial court avoided the major problem in Ludlow by giving a separate instruction on voluntary intoxication specifically referencing “other state of mind” and premeditation. Kleypas’ first contention fails.
Kleypas’ second contention regarding the voluntary intoxication instruction is that the instruction prevented the jury from using the voluntary intoxication evidence unless it found that it alone negated premeditation or intent. He claims that the United States Supreme Court in Martin v. Ohio, 480 U.S. 228, 233-34, 94 L. Ed. 2d 267, 107 S. Ct. 1098 (1987), recognizes that defendants must be permitted to combine different kinds of evidence to negate specific intent for charged crimes. He argues that the instruction given prohibited the jury from considering intoxication for any purpose unless Kleypas established the affirmative defense by a preponderance of evidence. According to Kleypas, because the jury in his case was precluded from considering evidence of voluntary intoxication unless that evidence alone negated specific intent, the instruction ran afoul of both K.S.A. 21-3208 and the Due Process Clause of the United States Constitution.
Martin does not support this contention of Kleypas. The defendant in Martin was charged with aggravated murder. Ohio law placed the burden of proving the elements of a criminal offense upon the prosecution but placed on the accused the burden of proving an affirmative defense by a preponderance of the evidence. Self-defense was an affirmative defense under Ohio law and therefore had to be proved by the defendant. The defendant was convicted and in his appeal to the Supreme Court he claimed that his conviction violated the Due Process Clause because of the burden placed upon him to prove self-defense. The Court disagreed and held that the State did not exceed its authority in defining the crime of murder as purposely causing the death of another with prior calculation or design. It did not seek to shift to Martin the burden of proving any of those elements. The Court noted that it would be quite different if the jury had been instructed that self-defense evidence could not be considered in determining whether there was a reasonable doubt about the State’s case, i.e., that self-defense evidence must be put aside for all purposes unless it satisfied the preponderance standard. The Court held that such an instruction would relieve the State of its burden and plainly run afoul of the mandate in In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), requiring the State to prove all of the elements of the crime beyond a reasonable doubt. 480 U.S. at 233-34.
In our case, contrary to Kleypas’ assertion, the instruction on voluntary intoxication did not limit the jury’s consideration of Kleypas’ state of intoxication nor did it limit consideration of any other evidence offered as to mental illness, prior drug use, or brain damage in determining whether the State proved the elements of the crime. The instruction only provided the jury with the standard it must consider in evaluating evidence regarding Kleypas’ voluntary intoxication.
We have concluded above that the instructions read as a whole placed the burden of proving all elements of the crimes charged upon the State. As in Martin, the instructions, “read as a whole, . . . are adequate to convey to the jury that all of the evidence, including the evidence going to self-defense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the State’s proof of the elements of the crime.” 480 U.S. at 234. The instruction given on voluntary intoxication in this case properly and fairly stated the law as applied to the facts. Kleypas was not prevented from presenting evidence regarding other factors bearing upon his ability to form specific intent. The burden of proving all essential elements of the crimes charged never shifted to Kleypas. We conclude that Kleypas’ contention is without merit and the jury could not reasonably have been misled by the court’s instruction on intoxication.
Issue 11. Instruction Regarding State’s Failure to Timely Notify Kleypas of Change in Testimony
This issue involves a statement made by one of the officers while driving Kleypas back to Kansas after Kleypas had waived extradition. As noted in our analysis concerning the admissibility of Kleypas’ confession, during a pretrial suppression hearing, before the taperecording of the conversation was enhanced, both officers believed that the statement “Are we going to have to get out and walk?” was made by Detective Hite. Prior to trial, KBI Agent Williams listened to an enhancement of the audiotape and realized that it was he who had made the statement. The State, however, did not notify the court of this change or notify Kleypas as required by law.
Based upon the State’s failure to do so, the court instructed the jury that it could consider this failure in the following instruction:
“The State’s failure to timely notify the defendant when Agent Tom Williams concluded he was the person who stated on the tape ‘are we going to have to get out and walk?’ may be considered by you in determining what weight to give to his testimony.”
Kleypas requested that the above instruction also refer to the weight the jury could give to Detective Hite’s testimony because Hite had also modified his testimony. The trial court rejected the request, stating that it was Agent Williams who had realized he had made the statement but was not forthcoming with the information, not Hite.
We agree with the trial court. The record demonstrates that while both Agent Williams and Detective Hite after listening to the enhanced taperecording agreed that the recorded statement was that of Agent Williams; Hite did not change his statement at trial. He explained that he believed he had made a similar statement on the trip back to Kansas.
Our standard of review is whether the instruction given without the additional language requested by the defendant properly and fairly stated the law as applied to the facts of the case and whether it reasonably could have misled the jury. See State v. Carr, 265 Kan. 608, 617, 963 P.2d 421 (1998). We have no hesitancy in con- eluding that the instruction given met the above standard. We emphasize that the court properly placed the duty on the State to notify both the court and Kleypas of a change in testimony. The credibility of both officers was thoroughly explored by Kleypas at trial, and the trial court’s instruction was consistent with the evidence that Agent Williams, not Detective Hite, changed his testimony.
Issue 12. Whether K.S.A. 21-3439(a)(4) Makes a Killing Occurring During an Attempted Rape Subject to the Death Penalty
Kleypas was convicted of capital murder based on the intentional and premeditated killing of the victim in the commission of the crime of attempted rape. He argues, however, that a correct interpretation of K.S.A. 21-3439(a)(4) precludes attempted rape as a predicate for capital murder. We find no merit in his claim.
K.S.A. 21-3439(a)(4) defines the offense of capital murder as:
“Intentional and premeditated killing of the victim of one of the following crimes in the commission of, or subsequent to, such crime: Rape, as defined in K.S.A. 21-3502 and amendments thereto, criminal sodomy, as defined in subsections (a)(2) or (a)(3) of K.S.A. 21-3505 and amendments thereto or aggravated criminal sodomy, as defined in K.S.A. 21-3506 and amendments thereto, or any attempt thereof, as defined in K.S.A. 21-3301 and amendments thereto.” (Emphasis added.)
Kleypas’ argument is that the statutory language “or any attempt thereof’ refers to aggravated criminal sodomy and not an attempted rape or criminal sodomy.
The interpretation of a statute is a question of law, and this court’s review is unlimited. State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998). The fundamental rule of statutory construction guiding this court’s determination is that the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, we must give it the effect intended by the legislature rather than determine what the law should or should not be. State v. Taylor, 262 Kan. 471, 478, 939 P.2d 904 (1997). The plain and unambiguous language of the statute demonstrates that “or any attempt thereof’ relates to all crimes specified in the same sentence.
Nevertheless, Kleypas moves beyond the plain language of the statute, suggesting that ambiguity arises by reason of testimony given by the attorney general during the adoption of the death penalty in Kansas. Kleypas points out that the Virginia death penalty statute which provided a general pattern for Kansas uses the following language: “The willful, deliberate, and premeditated killing of any person in the commission of, or subsequent to, rape or attempted rape, forcible sodomy or attempted forcible sodomy or object sexual penetration.” Va. Code Ann. § 18.2-31(5) (Michie 1996).
Kleypas argues that when the Kansas Legislature passed the death penalty statute, it modified an earlier proposed version of the statute that would have explicitly made it clear that a killing during attempted rape was a capital offense, as in the Virginia model. In doing so, Kleypas contends, the legislature created an ambiguity in the final version. According to Kleypas, by application of the “last antecedent rule,” the legislature intended that “or any attempt thereof’ modify only the immediately preceding phrase “aggravated criminal sodomy” and not any other crimes mentioned before. See Taylor v. Perdition Minerals Group, Ltd., 244 Kan. 126, 133-34, 766 P.2d 805 (1988) (explaining last antecedent rule). He also invokes the “rule of lenity,” which provides that any reasonable doubt about the meaning of criminal statutes is to be decided in favor of the accused. See State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998).
We need not dwell on the above arguments. The last antecedent rule is merely an aid to construction. It may not be employed to reach a certain result where the language of the statute is plain and unambiguous. See Link, Inc. v. City of Hays, 266 Kan. 648, 654, 972 P.2d 753 (1999). Similarly, while the rule of lenity is the general rule in construing criminal statutes, it too is subordinate to the rule that judicial interpretation must effect legislative design and intent. Vega-Fuentes, 264 Kan. 10, Syl. ¶ 3.
The capital-murder statute in Kansas narrowly defines the class eligible for the death penalty in plain and unambiguous language. To adopt the interpretation advanced by Kleypas would distort die statute, resulting in absurdity. In 1994, when the capital-murder statute became law, rape and aggravated sodomy were considered equally severe as shown by their classification as severity level 2 crimes. In 1996, the offense of rape as described in K.S.A. 21-3502(a)(1) and (a)(2) became a severity level 1 crime. There is no logical reason the legislature would intend the intentional and premeditated killing of the victim during the commission of an attempted aggravated sodomy to be a capital offense but the equally severe and now more severe crime of attempted rape would not be a capital offense. Finally, the failure of our legislature to adopt an earlier version of a proposed law or the wording of the Virginia statute becomes significant only in case of an ambiguous final version. We, therefore, hold that the phrase “or any attempt thereof’ modifies all the offenses contained in K.S.A. 21-3439(a)(4) and, thus, makes the intentional and premeditated killing of the victim during the commission of, or subsequent to, an attempted rape a capital murder.
Issue 13. Prosecutorial Misconduct in the Guilt Phase
Kleypas contends that prosecutorial misconduct during opening and closing statements and the prosecutor’s conduct during trial and in discovery denied him a fair trial. He argues that the conduct was so egregious as to warrant the reversal of his convictions and a new trial.
Prior to a discussion of the specific errors alleged by Kleypas, some general discussion with regard to this court’s handling of prosecutorial misconduct is appropriate. The first preliminary matter to be addressed concerns the necessity of a contemporaneous objection. While many of the allegedly improper remarks made by the State during closing argument were objected to by Kleypas, others were not. Reversible error normally cannot be predicated upon a complaint of misconduct by the prosecutor during closing argument where no contemporaneous objection is lodged. However, if the prosecutor’s statements rise to the level of violating a defendant’s right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection. State v. McCorkendale, 267 Kan. 263, 278, 979 P.2d 1239 (1999).
In addition, K.S.A. 21-4627(b) directs that this court “shall consider the question of sentence as well as any errors asserted in the review and appeal and shall be authorized to notice unassigned errors appearing of record if the ends of justice would be served thereby.” In State v. Collier, 259 Kan. 346, 353, 913 P.2d 597 (1996), we held that the same language in the pre-1994 hard 40 sentencing statute authorized this court to consider a defendant’s claim of prosecutorial misconduct even though he had failed to object to the remarks at trial. See State v. White, 263 Kan. 283, 305-306, 950 P.2d 1316 (1997). Thus, pursuant to K.S.A. 21-4627(b), this court will consider Kleypas’ claims of prosecutorial misconduct whether or not objected to at trial.
An appellate court’s analysis of the effect of a prosecutor’s allegedly improper remarks in closing argument is a two-step process: First, the appellate court must determine whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. Second, the appellate court must determine whether the remarks constituted plain error, that is, whether they were so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial. In order to find that the remarks were not so gross or flagrant, this court must be able to - find that when viewed in light of the record as a whole, the error had little, if any, likelihood of changing the result of the trial. McCorkendale, 267 Kan. at 278-79. Factors relevant in determining whether a new trial should be granted for prosecutorial misconduct include: (1) Whether the misconduct is so gross and flagrant as to deny the accused a fair trial, (2) whether the remarks show ill will on the part of the prosecutor, and (3) whether the evidence against the accused is of such a direct and overwhelming nature that it can be said that the prejudicial remarks of the prosecutor were likely to have little weight in the minds of the jurors. State v. Foster, 259 Kan. 198, 204, 910 P.2d 848 (1996).
In determining whether a prosecutor’s remark was improper, it should be noted:
“It is the duty of a prosecutor in a criminal matter to see that the State’s case is properly presented with earnestness and vigor and to use every legitimate means to bring about a just conviction, but he should always bear in mind that he is an officer of the court and, as such, occupies a quasi-judicial position whose sanctions and traditions he should preserve. [Citation omitted.]” State v. Ruff, 252 Kan. 625, 634, 847 P.2d 1258 (1993).
A prosecutor has a duty to refrain from making improper, misleading, inflammatory, or irrelevant statements to the jury. See Berger v. United States, 295 U.S. 78, 84-88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935). This duty is heightened in capital cases. See Lesko v. Lehman, 925 F.2d 1527, 1541 (3d Cir. 1991). See also California v. Ramos, 463 U.S. 992, 998-99, 77 L. Ed. 2d 1171, 103 S. Ct. 3446 (1983) (stating that “the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination”).
With these standards securely in mind, we turn to the specific arguments raised by Kleypas. Kleypas alleges that the State improperly attempted to hinder discovery and identifies comments of the prosecutor during opening statement, closing argument, and at trial which he claims were improper and prejudicial.
A. Hindering Defense Discovery
Kleypas argues the State’s actions in persistently hindering defense discovery must be considered in addressing the pattern of misconduct and bad faith on the part of the State. He incorporates his arguments on the State’s failure to correct KBI Agent Williams’ testimony regarding the “Are we going to have to get out and walk?” statement and the failure to inform the FBI of the trial court’s order to not consume all DNA material needlessly. He adds to this another alleged failure on the part of the State to timely disclose evidence relating to the “officer at the elbow” question.
During the car ride from Springfield to Girard, Kleypas was asked if he would have committed the crime if a police officer had been present. Kleypas replied he thought it would not have mattered “when he gets like that.” Kleypas appears to suggest there was some sort of purposeful omission of this statement in Agent Williams’ and Detective Hite’s reports.
The events surrounding this question, Agent Williams’ and Detective Hite’s failures to report the comment, and how the information came to light occurred as follows: On April 5, 1996, 3 days after the car ride in which the comment was made, defense counsel filed a motion to preserve police communications and request for discovery. The trial court granted the motion to preserve communications. Approximately 1 year later, on March 5, 1997, defense counsel filed a motion to call prosecutor Barry Disney as a witness to ask him about a comment that he made in a taped telephone conversation to a member of the attorney general’s office. During the conversation, Disney had relayed Kleypas’ answer to the “officer at the elbow” question and stated that neither Agent Williams nor Detective Hite had provided this information in his report or acknowledged such a statement in his testimony. In its response to this motion, the State noted that the tape of the telephone conversation had been listened to by a defense investigator on April 29, 1996, but defense counsel had never questioned Hite as to the statement. At a hearing on the motion, the defense counsel examined Hite and asked if Hite recalled asking Kleypas if he would have committed the crime had an officer been standing next to him. Hite stated that Kleypas “didn’t really give me a yes or no answer.” Hite also indicated that Disney requested that he ask the question. In response to a question, Hite agreed that he had not included this question and answer in his report. Agent Williams also agreed, in response to a defense question, that he had not written down this particular question and answer.
Kleypas admits this evidence became available to the defense well before trial but claims the State’s failure to disclose this exculpatory statement under both K.S.A. 22-3212(a)(4) and Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), demonstrates a bad-faith attempt to obstruct the defense. According to Kleypas, as the State does not contest that the statement was exculpatory in nature, the State’s duty to disclose was triggered. Furthermore, Kleypas claims Hite’s failure to include Kleypas’ response to this question could not have been inadvertent given the fact that the matter was deemed so important that he was specifically directed by Disney to ask Kleypas the question.
Kleypas’ contention that nondisclosure of the statement was purposeful is wholly without support. The fact that Disney may have asked Detective Hite to ask Kleypas this question does not suggest that Hite gave it any significance nor should he have. There is no evidence the State purposefully hindered discovery by failing to notify the defense that Agent Williams realized he had made the, “Are we going to have to get out and walk?” statement, by failing to inform the FBI to conserve DNA material if at all possible, or by failing to report Kleypas’ response to the question of whether he would have committed the crime had an officer been present at the scene. While it is clear that the State should have notified the defense counsel of these statements and should have informed the FBI of the court’s ruling regarding DNA testing, the misconduct here was not so gross and flagrant as to deny Kleypas a fair trial.
B. Opening Statements
The State initiated opening statements by saying:
“If it please the Court, opposing counsel and ladies and gentlemen of the jury. [C.W.] was a bright, lively young woman just twenty-one years old. In March of 1996 she was a junior at Pittsburg State University in Pittsburg, Kansas. She was engaged to be married to [M.F.]. She was interested in tennis, in fashion merchandising, her major, and helping other people and in planning her wedding.”
The defense counsel approached the bench to object, stating:
“Your Honor, all of this is irrelevant. [C.W.’s] activities ... are irrelevant to the jury. It has nothing to do with the evidence. He’s making an argument at this time which is not the purpose of opening statement and none of that is relevant, none of it is going to be put on as evidence, there is no purpose for it at all so I’m objecting to that whole line of argument because that is what it is. He’s not going to be allowed to put on evidence that says she was a wonderful person, she was a buoyant person, she played tennis, she played this or that. All of that is irrelevant.”
The State responded:
“Your Honor, we sire not going to dwell on that but we have a right to at least show who she was. I’ve got just a couple of questions about what she was interested in, what sort of things did she do and we aren’t dwelling on that, it is not the central part of the case but it is something we will produce evidence on and it is perfectly proper.”
The trial court overruled the objection but ordered the State to “move along.”
Prior to trial, Kleypas had filed a motion to bar victim impact statements during the penalty phase of the trial. The motion sought to exclude, among other things, “any evidence regarding the deceased’s life plans at the time of her death.” The trial court granted the motion.
Kleypas contends that since the juiy was instructed during the penalty phase that it could consider all evidence presented during the guilt phase, the State was prohibited from presenting any victim impact evidence at any point in the bifurcated proceedings. Kleypas contends the State’s opening comments demonstrate bad faith. Further, even if this court concludes this is not error in and of itself, Kleypas argues, this court should consider it as part of the overall pattern of prosecutorial misconduct which he claims “permeated this case.”
Kleypas contends the State was bound by its acquiescence in the motion to bar victim impact evidence during the penalty phase to not argue such evidence during the guilt phase. The basis of this argument apparently is the prejudicial impact since the jury was the same for both phases, i.e., what is improper in one phase must necessarily be improper in the other. This same concept, except in reverse, was discussed in Justice Souter’s concurring opinion in Payne v. Tennessee, 501 U.S. 808, 841, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1991). Payne reversed the decisions in Booth v. Maryland, 482 U.S. 496, 96 L. Ed. 2d 440, 107 St. Ct. 2529 (1987), and South Carolina v. Gathers, 490 U.S. 805, 104 L. Ed. 2d 876, 109 S. Ct. 2207 (1989), which had held the Eighth Amendment to the United States Constitution bars the admission of victim impact evidence during the penalty phase of a capital trial. Payne held that such evidence was not per se precluded by the Eighth Amendment. 501 U.S. at 825, 827. “In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” 501 U.S. at 825. In its analysis, the United States Supreme Court noted that in many cases evidence relating to the victim is already before the jury because of its relevance at the guilt phase of the trial. 501 U.S. at 823. Justice Souter commented:
“Booth thus raises a dilemma with very practical consequences. If we were to require the rules of guilt-phase evidence to be changed to guarantee the full effect of Booth’s promise to exclude consideration of specific facts unknown to the defendant and thus supposedly without significance in morally evaluating his decision to kill, we would seriously reduce the comprehensibility of most trials by depriving jurors of those details of context that allow them to understand what is being described. If, on the other hand, we are to leave the rules of trial evidence alone, Booth’s objective will not be attained without requiring a separate sentencing jury to be empaneled. This would be a major imposition on the States, however, and I suppose that no one would seriously consider adding such a further requirement.” 501 U.S. at 841 (Souter, J., concurring).
Imposing constraints on the State in the guilt phase because it agreed to a motion concerning the penalty phase would present an unexpected trap for the State. Though the State may have acquiesced in Kleypas’ motion to bar victim impact evidence during the penalty phase, it did not do so for the guilt phase of the trial. It should be noted that Kleypas does not argue that his motion in limine to prohibit improper arguments during first and second stage trial prohibited the prosecutor’s opening statement here. The trial court did not sustain this motion; instead, the court stated it would consider improper arguments on a case-by-case basis.
“Opening statements by counsel in criminal prosecutions are not evidence. They are given for the purposes of assisting the jury in understanding what each side expects its evidence at trial will establish and to advise the jury what questions will be presented for its decision. The tendency is to permit a prosecuting and defense attorney reasonable latitude in stating to the jury the facts they propose to prove.” McCorkendale, 267 Kan. 263, Syl. ¶ 4.
The prosecutor’s opening statements were within the reasonable latitude in stating facts or reasonable inferences from facts which the State would prove during the trial. It would be unreasonable to expect the State to refer to the victim in any case without some qualifiers concerning who this individual was in life. The absence of any characteristics of the victim would be artificial. There necessarily must be some reference to who the victim was and his or her relevance in the context of the time and place of the homicide. The prosecutor’s comments here were not error.
C. Conduct During Trial
During defense counsel Wood’s cross-examination of KBI Agent Williams concerning a memorandum on interrogation techniques, the following exchange occurred:
“Q. And you’ve already testified that Stu Hite read Miranda rights to Mr. Kleypas? “A. Yes, sir.
“Q. Okay. Then it goes on —
“Mr. BORK [Prosecutor]: Your Honor, I’m going to object to this line of questioning because this gets into dealing with whether it is a free and voluntary confession which the Court has already ruled upon.
“Mr. WOOD: Judge, I object to that statement. That is improper under Crane v. Kentucky.’’ (Emphasis added.)
Following the objections, a heated argument occurred at the bench. Wood requested a mistrial, which the court took under advisement. The trial court agreed with prosecutor Bork that the defense counsel could not discuss the legal requirements concerning admissibility of a confession but agreed with Wood that he could raise questions concerning the circumstances surrounding the confession. The trial court instructed the jury: “Ladies and gentlemen of the jury, you are to disregard Mr. Bork’s comments in his last objection. You as the jury have the right to consider all the surrounding circumstances of the defendant’s statement and you may give what weight you desire to those surrounding circumstances.”
Kleypas correctly argues that his counsel had a right to litigate issues surrounding the voluntariness and reliability of Kleypas’ confession under Crane v. Kentucky, 476 U.S. 683, 90 L. Ed. 2d 636, 106 S. Ct. 2142 (1986), and K.S.A. 22-3215(5). He further argues that it is inconceivable that the prosecution was unaware of the law and that this incident must be considered as evidence of the prosecutor’s ill will in addressing the overall pattern of misconduct.
The trial court in addressing the motion for mistrial, stated:
“So we start with the premise the defendant is completely entitled to present the surrounding circumstances of the confession to the jury. That is an undeniable. I told you that when you came up to the bench for the side bar, . . . that is what die Court allowed, I didn’t restrict the defendant in giving this information to the jury, the defendant was entitled to fully explore the surrounding circumstances that attend the statement in issue. Indeed the Court instructed the jury to that very effect. Now, I don’t think the jury has been prevented from considering the surrounding circumstances. They have been advised that they can give the appropriate weight to the surrounding circumstances that they deem appropriate. I believe they will and I believe they can do this. I believe that Mr. Bork’s comments did not convey to the jury that they are precluded from doing this. So the request for mistrial will be denied.”
Our review of the heated exchange between counsel and the record involving this claim does not support a finding of ill will on the part of the prosecutor. While the objection by the prosecutor may have been improper, defense counsel was able to fully litigate the issue of the weight and credibility the jury should give Kleypas’ confession and the jurors were clearly informed that it was within their province as fact finders to make that determination. Finally, the jury was instructed by the court to disregard the comments of the prosecutor. Under these circumstances, no prejudicial error occurred.
D. Closing Argument
Kleypas contends that during closing arguments, prosecutor Bork launched a personal attack on defense counsel Wood, referred to matters not in evidence, and claimed defense counsel thought Kleypas was guilty of some offense. Kleypas argues that at least seven incidents of misconduct occurred during closing arguments and that this constituted a denial of his right to a fair trial.
1. Upon completion of the State’s direct examination of Robin, the roommate of the victim, defense counsel asked for the police report containing her statement. Twice the prosecution denied having the report. At the beginning of the cross-examination, however, the witness stated that she had discussed the report with prosecutors. At this time, the prosecutor found the report and gave it to defense counsel, who then completed his cross-examination.
Outside the presence of the jury, defense counsel asked the court that it be made known that the prosecution had misrepresented the State when it denied having the report. The trial court refused, noting it saw no purposeful concealment considering the amount of documents in the case.
In closing argument, defense counsel commented upon the witness’ revelation that she had discussed the report with the prosecutors and stated “only at this point do you see the hand going down to the briefcase.” The State objected, stating: “That is not in evidence. That is Mr. Wood’s fantasy.” The trial court sustained the objection. Thereafter, Wood continued his argument without objection by stating: “You decide what you saw. I guess Tve fantasized a materialization of that report into the hands of my co-counsel for the very first time here in the courtroom. I guess you all fantasized that too.”
Kleypas argues that the prosecutor’s use of the word “fantasy” implied that Wood was lying and attempting to fabricate a claim of misconduct. According to Kleypas, the trial court gave credence to this attack and impaired Wood’s credibility in front of the jury by sustaining the objection. In support of this contention, Kleypas cites State v. Lockhart, 24 Kan. App. 2d 488, 947 P.2d 461, rev. denied 263 Kan. 889 (1997). In Lockhart, the Court of Appeals found that prosecutorial misconduct which included calling defense counsel a liar necessitated a new trial. 24 Kan. App. 2d at 491-92.
In the case at hand, the prosecutor’s use of the word “fantasy” was in response to the argument advanced by Kleypas that the State purposefully concealed the police report until that concealment was discovered. Defense counsel also used the same term arguing effectively to the jury: “I guess you all fantasized that too.” Moreover, the entire transaction between the parties was played out before the jury. The circumstances in Lockhart bear no similarity to this case. Under the circumstances of this case, we conclude that prosecutorial misconduct did not occur.
2. The second alleged attack occurred during the State’s rebuttal when prosecutor Bork argued during closing that he was used to a defense attorney’s accusations that he was hiding the facts or doing something unethical because “that is an old tactic.” Wood objected, stating, “I object, Your Honor, I have never accused Mr. Bork of that. It is not an old tactic with me. I object to that.” The trial judge stated, “I don’t believe he was referencing you.” Bork continued: Woods objected: “Judge, again how Mr. Bork feels about me personally is improper. I ask that the jury be admonished that doesn’t matter.” The trial court sustained the objection and told the jury to disregard Bork’s comment.
“Doesn’t want to talk about the facts of this case, would rather talk about counsel and I don’t blame him for that. It doesn’t particularly endear him to me, it doesn’t make me like him a lot but I don’t blame him for that. Because there is not a lot of case for them to talk about here.”
Kleypas complains that by overruling Wood’s objection to the “old tactic” comment, the trial court implied wrongful conduct and gave credence to Bork’s implication that defense counsel was attempting to mislead the jury. Kleypas admits the proceedings were “highly acrimonious”; however, there was no justification for expressions of personal feelings.
While we acknowledge that it was error for the prosecutor to express his personal feelings regarding defense counsel or what defense counsel may have thought of him, we note that the trial court sustained the objection and admonished the jury to disregard the statements. Even without this, we conclude that the entire exchange does not amount to misconduct so gross and flagrant as to deny Kleypas a fair trial.
3. In the third instance of alleged prosecutorial misconduct during closing arguments, prosecutor Bork stated:
“He made sure she was alone and he shaved his pubic hairs. Remember Dr. Mitchell and Dave Schroeder talking about trace evidence on the body and how you might be able to determine who had left the hairs there. The defendant couldn’t have left any pubic hairs, his pubic hairs were shaved in preparation for this.”
Defense counsel Moots objected that this was a misstatement when there was no evidence as to when Kleypas shaved his pubic hair. The trial court overruled the objection. Bork then stated: “What other purpose could the defendant have had in mind.”
Kleypas contends there was no evidence of any subjective reason for removal of his pubic hair, and no evidence whether he did so on a regular basis. He suggests that when the trial court overruled the defense counsel’s objection it gave the jury the impression that Bork’s statement was accurate and added support to the State’s theory of premeditation.
The comments of the prosecutor were not error. In closing argument, the prosecutor may draw reasonable inferences from the evidence but may not comment upon facts outside the evidence. State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000); State v. McCray, 267 Kan. 339, 351, 979 P.2d 134 (1999). Based on the evidence in the record, it was reasonable to infer that Kleypas shaved his pubic hair in preparation for a sexual assault on C.W.
4. Kleypas next objects to what he called the State’s mischaracterization of the defense counsel’s letter to Dr. J.D. Dix, a pathologist and medical examiner from Missouri. Bork stated: “When you discuss Dr. Dix’s testimony, remember the reason why he was here. The defense wrote him and said we need someone to challenge Dr. Mitchell’s testimony about penetration.” Kleypas objected on the grounds that this was a mischaracterization of the letter, but the objection was overruled. Kleypas contends what was actually stated in the letter was: “What we are interested in is any way to challenge Dr. Mitchell’s conclusion regarding the anal sodomy.” Kleypas was acquitted of aggravated criminal sodomy. Nonetheless, Kleypas suggests the “attack” was pertinent in addressing the pattern of bad faith demonstrated by the State.
Dr. Dix admitted on the stand that the defense “wanted a way to challenge Dr. Mitchell’s testimony.” The comment complained of was fair interpretation of the letter and unquestionably did not influence or prejudice the jury because Kleypas was acquitted of aggravated criminal sodomy.
5. Kleypas argues that further instances of ill will were shown when the State, in closing argument, violated the trial court’s order in limine to avoid reference to C.W.’s personal characteristics. Prosecutor Bork stated: “[C.W.] was a young woman twenty years old. She had a wonderful life.” While acknowledging that the trial court sustained Kleypas’ objection and told the jury to disregard the comment, Kleypas suggests this was a continuing disregard for his right to a fair trial.
We doubt whether the statement “She had a wonderful life” violated the trial court’s order in limine. While the trial court’s order related to the victim’s personal characteristics, the phrase complained of is so general and ambiguous that it can hardly be said to be a reference to C.W.’s personal characteristics or a violation of the motion in hmine. The fact that she was young and 20 years old was in the evidence and did not provide the jury with any information it did not already have. Even if it can be considered a violation, the statement was so brief and limited as to be of no prejudicial effect and hardly stands as an example of ill will on the part of the State.
6. Another example of ill will occurred, according to Kleypas, when prosecutor Bork was discussing KBI Agent Williams’ realization that it was his voice on the audiotape making the statement: “Are we going to have to get out and walk?” Bork said: “If there is any fault in the fact that this information didn’t get to the Judge, then it is my fault.” The trial court sustained an objection but refused to give a curative instruction. Kleypas argues Bork’s attempt to place tiie blame solely on himself was improper because it implicitly informed the jury it could disregard Instruction No. 10, which notified the jury it could consider the failure to notify in determining what weight to give Agent Williams’ testimony, and also by implicitly vouching for Agent Williams’ credibility.
The alleged reference to Instruction No. 10 occurred when Bork stated: “As the Judge told you, the state should have brought that to the attention of Court and opposing counsel, I didn’t do that.” We conclude that the statement was not prosecutorial misconduct. While the statement could be viewed as an attempt to deflect fault from Agent Williams, Instruction No. 10 as worded did not place the responsibility on either Bork or Agent Williams but rather on the State.
7. Finally, Kleypas complains of the State’s comments toward the end of closing argument when Bork said: “Opposing counsel has talked about the life or death of his client. Now is not the time to determine that. Now your duty is to determine whether or not his client is guilty. And he says that his client is guilty of something. It is just not capital murder.” The trial court sustained defense counsel’s objection. The trial court was not asked to admonish the jury, nor did it do so sua sponte.
After searching the record, we could find only two instances where defense counsel Wood made reference to lesser offenses. During his explanation of the lesser included murder instructions to the jury, Wood stated:
“And I’m going to tell you right now, I’m asking you — I'm asking you to — I’m telling you it is the right thing to do under die law, under the facts, under the situation to not give Mr. Kleypas capital murder, to not convict him of capital murder. Beyond that, it is up to your wisdom. It is up to your wisdom based upon what you have heard and seen what to do.
“I’m going to trust in you. We are going to trust in you to look at that beyond that and do what is appropriate.”
In his same argument at a later point, Wood stated: “[Bjut you know enough at this point, you know enough that you can’t convict Mr. Kleypas of capital murder. The rest is in your hands. That it is all in your hands.”
It is apparent that the defense counsel’s tactic in closing argument was to urge the jury not to convict Kleypas of capital murder. Although Wood’s statements could be perceived as reflecting an opinion that Kleypas was guilty of some lesser crime of murder, Bork’s reference to Wood’s opinion, whether express or inferred, was improper.
In McCray, 267 Kan. at 347, we held that error is committed when the prosecutor injects his or her personal opinion. Moreover, “[cjourts generally, although not uniformly, have found that it is improper for a prosecutor in a criminal jury trial to speculate in oral argument about the supposed beliefs of the defendant’s attorney with respect to defendant’s guilt or innocence.” See State v. Carpenter, 5 Kan. App. 2d 214, 219, 613 P.2d 966 (1980). In this case, we conclude that the comments of the prosecutor were error.
The remaining question is whether tire comments denied Kleypas a fair trial. As noted in the beginning of our discussion concerning prosecutorial misconduct, our standard of review is well established:
“In determining that a prosecutor s improper remarks made in closing argument are not so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial, the reviewing court must be able to find that when viewed in light of the record as a whole, the error had little, if any, likelihood of changing the result of the trial. This is a harmless error analysis. The court must be able to declare beyond a reasonable doubt that the error was harmless.” State v. McCorkendale, 267 Kan. 263, Syl. ¶ 8, 979 P.2d 1239 (1999).
We conclude that the remarks complained of were not so gross and flagrant as to deny a fair trial. The evidence of guilt was of such an overwhelming nature that there is little possibility the prosecutor s comments were given any weight in the jurors’ minds. Thus, we are able to conclude beyond a reasonable doubt that error was harmless.
Issue 14. jury Misconduct
Following the penalty phase of trial, Kleypas filed a motion for recall of the jury, requesting a hearing on allegations of jury misconduct and a new trial. The motion was accompanied by affidavits from five jurors and the affidavit of Gaye Nease, an investigator with the Death Penalty Defense Unit, regarding her interviews with the jurors. The State responded with affidavits from eight jurors.
Kleypas alleges six instances of jury misconduct occurring during the guilt and penalty phases:
(1) Juror Garrison, a police officer, improperly consulted a Kansas Criminal Code and Procedure Handbook during deliberations and read from it to the other jurors.
(2) Juror Mawhiney quoted the Bible during the penalty phase.
(3) Jurors disregarded the court’s instruction and considered Kleypas’ failure to testify during the penalty phase.
(4) Jurors speculated about the length of time Kleypas would serve in prison if he were not sentenced to death.
(5) Juror Seawood refused to consider mitigating evidence after evidence of Kleypas’ prior homicide conviction was introduced.
(6) Juror Garrison advised the other jurors that a vote for death did not mean Kleypas would be put to death.
A. Consulting the Kansas Criminal Code
In a memorandum opinion, the trial court ruled that except for the claim concerning juror Garrison’s consultation of a statute handbook, the allegations referenced the personal reasons the individual jurors relied on as to the verdict and, as such, improperly delved into their mental processes. The trial court found, however, the “handbook” did not involve mental processes and the trial court ruled this was a proper area of inquiry. Accordingly, the trial court allowed the recall of juror Garrison and held a hearing on the matter on February 20, 1998.
Juror Swygert’s affidavit stated:
“During deliberation a question came up regarding the definition of intent. The police officer advised that the court’s definition was wrong and different from the definition that the police department had given her. She took a book out of her purse and read the definition out loud. She stated that the court was making up its own rules and that she did not wish to be a part of it.”
Juror Garrison, the police officer, stated in her affidavit:
“I thought that an element had been left out of the first degree murder instruction. I had the Kansas Criminal Code and Procedure Handbook put out by the Kansas Peace Officers Association with me. I looked at the definition of first degree murder and may have read it to the jury. Because of my concerns we asked the question about the elements. When the Judge told us that the instructions were correct I based my decision on the written instructions that were given to us."
At the recall hearing, juror Garrison testified that she consulted a Kansas State Statute Code book concerning the various degrees of murder during the guilt-phase deliberations. Garrison kept the handbook in her purse. She could not remember whether she consulted any other portions but specifically denied reading anything regarding intent or advising any other jurors on a definition of intent. Garrison also did not remember if she read the definitions of first- and second-degree murder to the other jury members. As a result of reading her handbook, Garrison asked the trial court a question. The trial court’s response clarified any questions she had.
Garrison’s question to the court read:
“As a police officer, I know one element of premeditated 1st degree murder was left out of the jury instructions. This element I believe is that the murder happened during the commission of another violent felony. I realize I must only rely on the instructions and not my personal knowledge. On the other hand, I can’t erase this knowledge & make a decision. I think I should be excused & an alternate take my place.”
The trial court responded: “You are instructed that the jury instructions correcdy state the elements of the crime charged and that you are to follow said instructions. You are instructed to review jury instructions #17 and #18 as they correctly state the elements of Premeditated First Degree Murder and Felony Murder.”
After Garrison testified, the trial court noted that the handbook, with a minor irrelevant exception, correctly stated the law regarding first- and second-degree murder and voluntary manslaughter. The trial court concluded that the introduction of this extrinsic material was juror misconduct. However, relying mainly on this court’s decision in State v. Goseland, 256 Kan. 729, 887 P.2d 1109 (1994), and the Court of Appeals’ decision in State v. Duncan, 3 Kan. App. 2d 271, 593 P.2d 427 (1979), the court concluded the handbook did not introduce material issues of fact or personal knowledge of extraneous facts and, therefore, there was no showing that Kleypas’ rights were substantially prejudiced. The trial court denied Kleypas’ motion for new trial based on juror misconduct.
Kleypas advances two arguments. First, he argues that the trial court should have conducted further inquiry where the affidavits submitted contradicted a juror’s testimony during the hearing. Kleypas objected to the limited “scope” of the recall hearing, pointing out the apparent conflict between Garrison’s testimony denying that she read the definition of intent from her handbook and the affidavits of juror Healy and juror Swygert. He cites the language found in Saucedo v. Winger, 252 Kan. 718, 850 P.2d 908 (1993): “We have found it advisable to permit inquiry into a juror’s misconduct which comes to the attention of other members of the panel and may be verified or denied,” and a subsequent statement: ‘Where a juror’s misconduct relates to a material issue, the only way for a trial court to determine if the misconduct improperly influenced the jury’s verdict is to recall the jury and inquire.” 252 Kan. at 729, 732.
The two statutes bearing on the issue are K.S.A. 60-441 and K.S.A. 60-444, which provide:
“Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.” K.S.A. 60-441.
“This article shall not be construed to a exempt a juror from testifying as a witness to conditions or occurrences either within or outside of the jury room having a material hearing on the validity of the verdict or the indictment, except as expressly limited by K.S.A. 60-441.” K.S.A. 60-444(a).
The inquiry which was proper under K.S.A. 60-444(a) was whether Garrison committed misconduct by reading the definition of intent from her handbook and whether she read the definition to the other jurors, but not what effect the misconduct might have had on the thought processes of the jurors. In Saucedo, where this court did find the trial court abused its discretion by failing to recall the jury, none of the jurors was recalled or questioned further. Here, the trial court did recall juror Garrison. Garrison was examined and cross-examined by the parties.
The granting of a new trial or recalling the jury to answer for misconduct is within the sound discretion of the trial court. K.S.A. 60-259. See Saucedo, 252 Kan. at 729; State v. Macomber, 244 Kan. 396, 407, 769 P.2d 621, cert. denied 493 U.S. 842 (1989). The test of the trial court’s abuse of discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, an appellate court will not disturb the trial court’s decision. Goseland, 256 Kan. at 735.
Intent was a material issue at trial. The issue here is whether the trial court abused its discretion by limiting the recall of jurors to Garrison. It is difficult to conceive what purpose further testimony from the other jurors would provide. Even if the affidavits of Swygert and Nease are accepted as true, there is no allegation that the definition of intent contained in the handbook was incorrect. Further, after Garrison’s misconduct, the jury asked for clarification from the court. The court directed the jury to the proper instructions which correctly stated the law. Under the circumstances, the trial judge’s decision that a recall of jurors other than Garrison was unnecessary was not a decision with which no reasonable person could agree. Kleypas has failed to show that the trial court abused its discretion in limiting the scope of the recall or denying the motion for a new trial on the basis of Garrison’s actions.
B. furor Mawhiney’s Biblical Quotation
Kleypas argues Garrison’s affidavit admits that another juror “quoted the Bible to her.” Kleypas states that though it is not clear what specific passage was discussed, it is clear that the Bible was improperly considered in the penalty phase. Accordingly, he argues the death penalty must be set aside or, at the minimum, a recall of the jury ordered for further inquiry.
Garrison s affidavit stated in relevant part: “I do remember one lady quoting a Bible passage to me, but this did not play a big part in my decision.” No other juror affidavit mentioned this occurrence. Gaye Nease’s affidavit stated, in relevant part:
“When I interviewed Juror Garrison, she advised that she was having difficulty deciding to vote for death because of her religious beliefs. In response to her making statements about this, Juror Mawhiney quoted a passage from the Bible to her. The quote had the effect of removing her religious concerns about imposing the death penalty and allowed her to proceed to vote for the death penalty.”
The trial court did not refer to this specific incident in its memorandum opinion. Instead, the court concluded that except for Garrison’s consulting her handbook, all other allegations of misconduct delved into the mental processes of the jury. The State’s response to this allegation of juror misconduct and the remaining allegations is that the trial court correctly found the affidavits delved into mental processes and, thus, were inadmissible. This court may consider the fact that Mawhiney quoted a biblical passage. See K.S.A. 60-441 and 60-444.
In the cases Kleypas cites, a Bible was present in the juiy room. The court in Jones v. Kemp, 706 F. Supp. 1534, 1560 (N.D. Ga. 1989), held it was constitutional error for the trial court to have given permission for the jury to take a Bible into the jury room at the jurors’ request. Key in its decision was the implied court approval of the jury’s reference to extra judicial authority though the record was silent on whether the Bible was read or merely present in the room. In dicta, the court stated it “in no way means to suggest that jurors cannot rely on their personal faith and deeply-held beliefs when facing the awesome decision of whether to impose the sentence of death on a fellow citizen.” 706 F. Supp. at 1560.
In State v. Harrington, 627 S.W.2d 345, 350 (Tenn. 1981), the Tennessee Supreme Court vacated the defendant’s death sentence where a juror was excluded because of the juror’s opposition to the death penalty. The court also noted:
“[D]uring deliberations in the sentencing phase of the trial, the jury foreman buttressed his argument for imposition of die death penalty by reading to the jury selected biblical passages. His action, of course, was error which would have required a new sentencing hearing absent the error in excluding jurors for cause in violation of the Witherspoon standard.” (Emphasis added.) 627 S.W.2d at 350.
Though not determining whether grounds for reversal standing alone, the Kentucky Supreme Court noted it was error for jurors to take Bibles into the jury room with them in Grooms v. Com., 756 S.W.2d 131, 142 (Ky. 1988). The Chief Justice, in a concurring and dissenting opinion, would have found the use of the Bible an additional ground for reversal. Furthermore, the Chief Justice found it “alarming” that the uncontested affidavit not only confirmed the existence and use of the Bible during deliberations but that a particular passage played a “major role” in the jury’s decision to vote for the death sentence. The Chief Justice stated:
“What the Bible says about the appropriateness of a death penalty in a particular case is not a legitimate concern of a penalty phase jury. ‘The law specifies when the death penalty is appropriate, and neither the prosecutor nor the defense counsel should be permitted to adduce evidence as to how [a capital] case should be decided on religious grounds.’ Ice v. Commonwealth, Ky., 667 S.W.2d 671, 676 (1984). If evidence of biblical references to capital punishment is not competent during the penalty phase of a capital trial, it is axiomatic that a jury may not independently consult the biblical scriptures for guidance in reaching its life and death decision.” 756 S.W.2d at 145. (Chief Justice Stephens, concurring and dissenting).
All we know from the affidavit here is that juror Mawhiney quoted, not read, a biblical passage to juror Garrison, but it did not play a major role in her decision. The trial court did not abuse its discretion by not ordering a recall or inquiry into this matter.
C. furors Considering Kleypas’ Failure to Testify
Kleypas argues the trial court erred in failing to recall the jury to inquire into affidavits stating that the jurors considered Kleypas’ failure to testify despite jury instructions in both phases directing the jury to not consider this fact; to inquire into juror speculation regarding alternate sentencing dispositions in the event a death sentence was not imposed; and one juror’s affidavit stating that she did not consider mitigating evidence after she was informed of Kleypas’ prior homicide conviction. The trial court declined to recall jurors on any of these allegations, finding the claims improperly delved into the mental processes of the jury.
Kleypas acknowledges that in State v. Myers, 215 Kan. 600, 602-03S, 527 P.2d 1053 (1974), we ruled a jury verdict may not be impeached by evidence the jury considered the defendant’s failure to testify. Kleypas complains this holding leaves a defendant no recourse despite flagrant disregard of a court’s instruction and furthermore is inconsistent with later decisions, citing: City of Ottawa v. Heathman, 236 Kan. 417, 424, 690 P.2d 1375 (1984); Verren v. City of Pittsburg, 227 Kan. 259, 607 P.2d 36 (1980); State v. Wainwright, 18 Kan. App. 2d 449, 856 P.2d 163 (1993); and Johnson v. Haupt, 5 Kan. App. 2d 682, 623 P.2d 537 (1981). Kleypas suggests that to the extent even one juror voted for the death penalty because of his failure to testify, he was denied a right to a fair and impartial trial.
When addressing this specific allegation of juror misconduct, the trial court relied on State v. Mitchell, 234 Kan. 185, 672 P.2d 1 (1983), which followed the ruling in Myers. Mitchell found allegations that a juror considered a defendant’s failure to testify were prohibited by K.S.A. 60-441. 234 Kan. at 191. The trial court further found the affidavits failed to demonstrate a conscious conspiracy on the part of the jury to disregard the instructions following Wainwright, 18 Kan. App. 2d at 453.
In Myers, this court cited the long-held rule: “ ‘A juror cannot be heard to impeach his verdict by saying that in the deliberation he or any other member of the jury took into consideration the matter of the defendant having failed to testify in his own behalf when the jury was instructed not to do so.’ [Citation omitted.]” 215 Kan. at 602. This is in essence what is codified in K.S.A. 60-441. Under similar facts, Mitchell relied on Myers in finding no error when the trial court ruled a juror affidavit was not admissible as delving into the mind of the juror. 234 Kan. at 190-91.
In City of Ottawa, this court discussed when it was proper to grant a motion for new trial based on evidence the jury has not followed the court’s instructions. City of Ottawa acknowledged the limitations of K.S.A. 60-441 and 60-444 and held:
“Where under all the facts and circumstances it is disclosed that the jury was confused in making findings and in awarding damages, or where a jury verdict manifests a disregard for the plain instructions of the court on die issue of damages, or arbitrarily ignores proven elements of damage, or indicates passion, prejudice or a compromise on the issues of liability and damages, the verdict should be set aside on motion for a new trial.” 236 Kan. at 423.
Again, in Verren, the matter of jury misconduct concerned specifically conspiring to circumvent the instructions given to include attorney fees in the amount of damages awarded and did not rest solely on the mental processes of the jury.
“[T]he truth and veracity of those testifying to such misconduct can be tested. The matters recited in the affidavits filed in the present case do not solely relate to die mental processes, nor do diey rest alone in the mind of a juror or jurors. The matters set forth in the affidavits, if proven, would establish a conscious conspiracy by the members of die jury to disregard and circumvent the instructions on the law given by the court.” 227 Kan. at 262.
A similar situation existed in Johnson, 5 Kan. App. 2d at 686-87. The same concept was repeated in Wainwright, where juror affidavits were offered to show the jury disregarded the trial court’s instruction on consideration of bloodhound evidence. The Court of Appeals found no error in the court refusing to delve into the mental processes of the jury where “[t]he verdict is not so contrary to the evidence that it suggests a conspiracy to disregard the instruction.” 18 Kan. App. 2d at 453.
Where claims of jury misconduct directly implicate the jury’s mental processes and cannot be readily verified as is the case here, the trial court does not abuse its discretion by refusing to recall the jury. Where the affidavits set forth allegations, the truth of which can be verified, as in damage awards, the trial court can allow inquiry and order a new trial. There is no conflict in this area of law. The trial court did not abuse its discretion by refusing to recall the jury based on allegations the jury disregarded the court’s instruction to not consider the fact that Kleypas did not testify in either the guilt or penalty phases.
D. fury’s Speculation on Potential Non-death Sentence
Kleypas argues the affidavits show the jurors speculated during the penalty phase on the amount of time he would be required to serve if the death penalty were not imposed. He contends this was a proper area for recall and inquiry as it involved consideration of extrinsic matters. Kleypas contends he was prejudiced because the affidavits demonstrate that this speculation played a key part in the jury’s sentencing verdict. Furthermore, according to Kleypas, juror Swygert’s affidavit shows the jury’s understanding of alternative dispositions was wrong. Kleypas contends that because of the jurors’ attempts to misadvise each other regarding the law, there was jury misconduct requiring reversal of the death sentence.
In Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 476, 856 P.2d 906 (1993), this court considered the extent a trial court can delve into the mental processes of the jury and stated:
“ ‘Under these statutes [K.S.A. 60-441 and 60-444] we have held that a juror may not impeach his or her verdict on any ground inherent in the verdict itself; a juror may not divulge what considerations personally influenced him or her in arriving at the verdict or what reasoning personally led him or her to the final decision. State v. Taylor, 212 Kan. 780, 512 P.2d 449 (1973). More recently in Crowley v. Ottken, 224 Kan. 27, 31, 578 P.2d 689 (1978), it was pointed out that evidence is not admissible under K.S.A. 60-441 if it only pertains to the reasons a juror joined in the verdict. To be admissible the evidence must relate to extrinsic misconduct or to physical facts or occurrences within or without the jury room.’ Verren v. City of Pittsburg, 227 Kan. 259, 260, 607 P.2d 36 (1980).
“ ‘The mental process of a juror in reaching a verdict or the factors which influence the mental process cannot be inquired into for the purpose of impeaching a verdict. Public policy forbids the questioning of a juror on these matters for a very obvious reason, i.e., there is no possible way to test the truth or veracity of the answers.’ Saucedo v. Winger, 252 Kan. 718, 729, 850 P.2d 908 (1993).
See Crowley v. Ottken, 224 Kan. 27, 31, 578 P.2d 689 (1978) (juror’s affidavit to impeach verdict inadmissible; affidavit ‘did not relate to extrinsic misconduct or to physical facts or occurrences within or without the jury room but only to the reasons she joined in the verdict’); Smith v. Union Pacific Railroad Co., 214 Kan. 128, 134-35, 519 P.2d 1101 (1974) (trial court properly excluded juror’s affidavit that stated jury ‘instructions were not clear and were confusing to some of the jurors’).”
The jurors’ speculation of what sentence Kleypas would receive or how long Kleypas would be incarcerated if he did not receive the death penalty was part of the reasoning or thought processes of the jury. In accordance with our well-reasoned precedent in this area, these were not proper subjects for recall and inquiry in order to impeach the verdict.
E. luror’s Refusal to Consider Mitigating Evidence
In an affidavit for the defense, juror Seawood stated:
“I felt cheated and angry when we were told about the old lady being killed for the first time at the penalty phase trial. Once I heard about the murder of the old lady, I did not want to hear any more. I did not even consider mitigation after I heard about the old lady’s murder. I felt like it was my grandmother that had been killed. At second phase my thought went to the old lady even more than to [C.W.], I did not hear what other jurors were saying because my thoughts about this were so strong.”
In her affidavit prepared for the State, she stated: “Hearing about the murder of Bessie Lawrence did have a great effect on me. I still listened to all the evidence but the mitigators could not outweigh the aggravator of his Trilling the old lady.”
Kleypas suggests juror Seawood’s initial affidavit shows that after she heard evidence of the prior homicide she had in essence decided the case prior to hearing all the evidence. He contends that therefore Seawood was not an impartial juror and a death sentence imposed by a jury where a member is not impartial denies him due process of law, citing State v. Cady, 248 Kan. 743, 811 P.2d 1130 (1991).
In Cady, a juror was overheard during a recess saying, “ ‘[tjhat son-of-a-bitch [Cady] is guilty as hell.’ ” 248 Kan. at 749-50. The remark was overheard by a detective who reported it to the prosecution; however, the prosecution never reported it to the defense counsel. While noting the right to a jury trial guarantees to the defendant a fair trial by an impartial, indifferent jury, the court also stated:
“[T]he Fourteenth Amendment’s guaranty of due process does not require that a prospective juror be totally ignorant of the facts and issues involved in the case, and the mere existence on his or her part of a preconceived notion as to the guilt or innocence of the accused is, without more, insufficient to rebut the presumption of impartiality if he or she can lay aside an impression or opinion and render a verdict based on the evidence presented in court.” 248 Kan. at 755.
The court did not consider whether this juror s preconceived opinion violated due process because prosecutorial misconduct required a new trial. 248 Kan. at 757.
Juror Seawood’s statement is not of the type that occurred in Cady, and her second affidavit stated that she “listened to all the evidence but the mitigators could not outweigh the aggravator of his killing the old lady.” Instead of indicating a preconceived opinion, the affidavits, read together, demonstrate a proper weighing of aggravating and mitigating circumstances. She was required to and did evaluate all the evidence. Her ultimate decision was adverse to Kleypas but provides no basis for his claims of a denial of due process.
F. furor Garrison Advising Other furors That a Vote For Death Would Not Mean Kleypas Would Get Death
Juror Garrett stated in her affidavit for the defense, “[a]nother juror, the police officer, repeatedly told the jury that just because a vote was for death, that did not mean that Mr. Kleypas would get death.” She clarified in her affidavit for the State by stating:
“When I said in paragraph 4 in my first affidavit, ‘Another juror, a police officer, repeatedly told the jury that just because a vote was for death, that did not mean that Mr. Kleypas would get death,’ what I meant, and what I think I had originally said, was that the police officer told the jury that just because a vote was for capital murder in the first phase, that did not mean that Mr. Kleypas would automatically get death in the second phase.”
Kleypas argues the trial court erred by not recalling juror Garrett to resolve the discrepancy between her affidavits. He contends it is critical to determine whether her comments were made during the guilt or penalty phase, as the effect was to minimize the gravity of the decision the jury was making, citing Caldwell v. Mississippi, 472 U.S. 320, 328-29, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985), in which the United States Supreme Court held that it was impermissible for the State to argue in closing that the responsibility for determining appropriateness of the defendant’s death sentence lies elsewhere than with the jury.
The trial court did not specifically address this claim, again labeling all of the issues except juror Garrison’s consultation of her handbook as being the mental processes of the jury. The question is whether the trial court abused its discretion by refusing to recall juror Garrett. Even if we were to consider the affidavit, we note that Garrett’s second affidavit clarified her original affidavit and hold that the trial court did not abuse its discretion.
Having considered all of Kleypas’ allegations of juror misconduct, we find that the trial court did not abuse its discretion in failing to recall jurors other than Garrison and in ultimately concluding that Kleypas’ motion for new trial based on juror misconduct should be denied.
Issue 15. Sufficiency of Notice to Seek the Death Penalty and Failure to Provide a Pretrial Ruling on Whether Sufficient Evidence Existed to Support Aggravating Circumstances
Kleypas argues the State’s notice of intent to seek the death penalty was insufficient where it did not provide notice of any aggravating circumstances or evidence the State would rely upon. He argues, furthermore, that when the State did file its notice of aggravating circumstances, the notice omitted some evidence the State ultimately presented. Finally, Kleypas contends that when he objected to the sufficiency of the aggravating circumstances, the trial court refused to rule on the motion until after the guilt phase of trial. According to Kleypas, this violated his due process rights.
A. Sufficiency of Notice
The notice statute, K.S.A. 21-4624, states in relevant part:
“(a) If a defendant is charged with capital murder, the county or district attorney shall file written notice if such attorney intends, upon conviction of the defendant, to request a separate sentencing proceeding to determine whether the defendant should be sentenced to death. Such notice shall be filed with the court and served on the defendant or the defendant’s attorney not later than five days after the time of arraignment. If such notice is not filed and served as required by this subsection, the county or district attorney may not request such a sentencing proceeding and the defendant, if convicted of capital murder, shall be sentenced as otherwise provided by law, and no sentence of death shall be imposed hereunder.
“(c) In the sentencing proceeding, evidence may be presented concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of the aggravating circumstances enumerated in K.S .A. 21-4625 and amendments thereto and any mitigating circumstances. Any such evidence which the court deems to have probative value may be received regardless of its admissibility under the rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. Only such evidence of aggravating circumstances as the state has made known to the defendant prior to the sentencing proceeding shall be admissible, and no evidence secured in violation of the constitution of the United States or of the state of Kansas shall be admissible.” (Emphasis added.)
On October 17,1996, the day of arraignment, the State filed the following notice:
“The State of Kansas by and through Carla J. Stovall, Attorney General, John K. Bork, Assistant Attorney General, and Barry K. Disney, Crawford County Attorney, give notice to the Court and to the defendant of the State’s intention, upon conviction of the defendant, to request a separate sentencing proceeding to determine whether the defendant should be sentenced to death.”
Kleypas filed a motion to bar the State from seeking the death penalty for inadequate and defective notice based on the omission of aggravating circumstances the State intended to rely upon in seeking the death penalty. The trial court denied the motion after a hearing. The trial court reasoned the statute was clear and gave no indication that the aggravating circumstances must be listed or included with the notice of intent to seek the death penalty. The trial court ruled the State must file its statutory aggravating circumstances within a reasonable time of trial so that the defendant has sufficient time to prepare accordingly.
The State filed notice of the aggravating circumstances on January 3, 1997. The guilt-phase trial began on July 8, 1997.
The issue involves interpretation of K.S.A. 21-4624. Therefore, our standard of review is as follows:
“Interpretation of a statute is a question of law, and our review is unlimited. State v. Robinson, 261 Kan. 865, 874, 934 P.2d 38 (1997). A fundamental rule of statutory construction is that the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, an appellate court must give effect to the intention of the legislature rather than determine what the law should or should not be. State v. Proffitt, 261 Kan. 526, 532, 930 P.2d 1059 (1997). The general rule is that a criminal statute must be strictly construed in favor of the accused and any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. However, this rule is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Roderick, 259 Kan. 107, 110, 911 P.2d 159 (1996).” State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998).
Kleypas argues the term “notice” in K.S.A. 21-4624(a) requires more than the cursory notice that the State intended to seek the death penalty and that instead notice must be sufficient to allow a defendant to face the death penalty proceedings. He contends that K.S.A. 21-4624 provides for only one notice and that nothing in the statute provides for a later second notice which would contain the aggravating circumstances. In support of his contention, he cites State v. Gideon, 257 Kan. 591, 894 P.2d 850 (1995).
In Gideon, the State presented notice at arraignment of the aggravating circumstances on which it would rely. Gideon, however, argued that the State was required to give notice of the evidence it would present at the sentencing proceeding, not just the aggravating circumstances. We found that the State’s presentation of the aggravating circumstances was sufficient, noting that K.S.A. 1993 Supp. 21-4624(1), which at that time addressed the notice requirement for imposition of the hard 40 sentence, “does not detail what information must be contained in the notice.” 257 Kan. at 601. We also concluded that the presentation of aggravating circumstances before trial was sufficient under the facts to advise Gideon as to what evidence would be presented. 257 Kan. at 601.
Contrary to Kleypas’ argument, our opinion in Gideon does not stand for die proposition that K.S.A. 21-4624 requires the State to present notice of the aggravating circumstances at the time of arraignment. Rather, in Gideon, we held that it was sufficient for the State to do so at that time and that no further notice regarding the evidence was required. 257 Kan. at 600-01.
Kleypas also cites State v. Timmons, 192 N.J. Super. 141, 469 A.2d 46 (1983), for the proposition that notice of aggravating factors at arraignment is required. In Timmons, the State failed to present aggravating factors at arraignment as required by court rule. The court found this to be error and precluded the State from alleging aggravating factors not disclosed. 192 N.J. Super. at 149. In so holding, the court stated:
“R. 3:13-4(a) requires the prosecutor to give defendant, at arraignment, an itemization of aggravating factors which he or she intends to prove at the sentencing hearing. Discovery pertaining to such aggravating factors must also be disclosed at arraignment, unless the time to do so is enlarged for good cause by the court. The purpose for this requirement is revealed in the commentary to the rule, which states, ‘This practice would serve to avoid needless delays often occasioned by the failure to provide discovery in a timely fashion. Such a practice has the added advantage fo allowing increased time to fully investigate and analyze the aggravating and mitigating circumstances said to be present in a given case.’ [Citation omitted.]
“The additional time for investigation provided via the rule is vitally important for the defendant. This is so because, ‘. . .the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100 year prison term differs from one of only a year to two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.’ Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2991, 49 L. Ed.2d 944 (1976). This distinction cannot be overstated.” 192 N.J. Super. at 144.
The Timmons court went on to recite several considerations for which a defendant might need this extra time, including: (1) the retention or appointment of counsel, (2) tactical decision about the handling of the case and pretrial motion, (3) preparation for the penalty phase, (4) eligibility for bail, and (5) plea bargaining. 192 N.J. Super. at 145-46.
While the policy considerations that lead the New Jersey courts to adopt a court rule requiring notice of aggravating factors at the time of arraignment are certainly valid, we have adopted no such rule in Kansas. Such a bright line rule might be helpful but it cannot be said that it is required by the language of K.S.A. 21-4624. Rather, the statute requires only that the State file notice of its intent to seek the death penalty at that time. K.S.A. 21-4624(a). This notice is sufficient to allow a defendant to begin his or her preparation for trial as it serves notice that the case will indeed be a death case, thus allowing the defendant to make choices regard ing the retention of counsel, plea bargaining, and preparation of mitigating circumstances. See Timmons, 192 N.J. Super. at 145-46.
We, therefore, hold that under K.S.A. 21-4624, the State is only required to provide notice that it intends to seek the death penalty upon conviction for capital murder. The State may at that time provide notice of the aggravating circumstances on which it will rely but the State is not required to do so as long as it provides such notice within a reasonable time prior to trial to allow the defendant an opportunity to prepare to defend against the aggravating circumstances.
Here, the State filed notice of aggravating circumstances 6 months before trial. Kleypas was aware of one likely aggravating circumstance — his prior murder conviction. Under the circumstances, Kleypas’ due process rights were not violated.
As part of his argument regarding the notice requirement in K.S.A. 21-4624, Kleypas also contends that the prosecution’s list of the evidence which it would offer lacked notice of some of the evidence ultimately presented, specifically, that footprints behind Bessie Lawrence’s house led to Kleypas’ home. However, K.S.A. 21-4624 does not require the State to fist the evidence it will present with regard to the aggravating circumstances as long as the State has made this evidence known to the defense prior to the sentencing proceeding. See K.S.A. 21-4624(c); Gideon, 257 Kan. at 600-01.
B. Pretrial Ruling on Sufficiency of Aggravating Circumstances
Kleypas contends he had a right to a judicial determination of whether there was some basis for the existence of the aggravating circumstances or, in other words, probable cause before the guilt phase even began. Kleypas filed a motion challenging the sufficiency of some of the aggravating circumstances; however, the trial court refused to rule on the motion until the conclusion of the guilt phase.
The State filed notice of five aggravating circumstances on January 3, 1997. Prior to commencement of the penalty phase trial, the State dismissed one aggravator and the trial court dismissed another, leaving three aggravating circumstances.
Kleypas argues the trial court’s failure to rule on his motions deprived him of due process of law. He contends the Due Process Clause of the Fourteenth Amendment to the Unites States Constitution requires that a defendant subject to the death penalty must first be given notice that the penalty may be imposed and then be given a fair opportunity to contest the imposition before it is pronounced. He urges this court to follow California and New Jersey and find some judicial review of the prosecutor’s decision to seek the death penalty prior to trial would be in order, citing State v. McCrary, 97 N.J. 132, 478 A.2d 339 (1984), and Ghent v. Superior Court of Santa Clara County, 153 Cal. Rptr. 720, 90 Cal. App. 3d 944 (1979). Otherwise, according to Kleypas, any time there is a homicide the prosecutor can impanel a death qualified jury for the guilt phase of the trial by merely filing a list of aggravating circumstances, even if none exist. He argues that a defendant has a significant interest in having a normal non-death qualified jury, an interest which is lost if the trial court denies the defendant a hearing and ruling on challenges to aggravating circumstances.
In McCrary, the State of New Jersey brought an indictment charging McCraiy with purposeful or knowing murder, aggravated assault, unlawful possession of a handgun, and possession of a firearm with a purpose to use the weapon unlawfully. Under New Jersey law, McCrary faced the death penalty for a purposeful or knowing murder if one or more statutorily specified aggravating factors were shown and not outweighed by one or more mitigating factors. The New Jersey Code required the State to give a defendant notice of any aggravating factors it intended to prove “ ‘[p]rior to the commencement of the sentencing proceeding, or at such time as he has knowledge of the existence of an aggravating factor . . . .’ ” 97 N.J. at 135. At the time of notification, the State was also required to provide “ ‘all discovery bearing on’ ” the aggravating factors. 97 N.J. at 138.
Before trial, McCrary moved to strike the aggravating factors, alleging the factors were totally unsupported by the evidence. Over the State’s objection, the trial court ordered a hearing on the suf ficiency of proof of aggravating factors. The State filed a motion for leave to appeal from the order. The New Jersey court granted review on the limited issue of whether the New Jersey Code permitted judicial review of aggravating factors prior to trial on the factual basis of the factors and, if so, the type of hearing that could be conducted. The New Jersey court made clear that it was not addressing any constitutional or statutory issues not squarely before the court. 97 N.J. at 138.
First, on the issue of jurisdiction, the New Jersey court stated:
“When a criminal proceeding takes on the character of a capital case, the exercise of such authority [jurisdictional] is not only tenable, it is absolutely imperative to ensure fundamental fairness to a defendant. There is a qualitative distinction between death and imprisonment. ‘Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.’ Woodson v. North Carolina, 428 U.S. 280, 305 (1976). A healthy sensitiviiy to this distinction militates against prejudicing a defendant by the unwarranted injection of the possibility of a death sentence in a homicide proceeding.” 97 N.J. at 139-40.
Next, the court stated that the fact that the legislature did not provide for such a remedy did not mean the judicial branch was limited in fashioning or denying remedies within the boundary of legislative expression. The court particularly noted the appropriateness of judicial oversight in view of the significance of the prosecutor’s notice, which alone transforms a homicide case into a capital proceeding. The New Jersey Code requires no probable cause determination of whether a homicide case should proceed as a capital case. The prosecutor’s notice acts as the trigger for both the death qualification of the jury and the separate sentencing phase. Therefore, “[s]ome judicial oversight is required to ensure at the very least that the proceeding contemplated by the prosecutor’s notice not be set in motion without justifiable cause.” 97 N.J. at 140.
Addressing prosecutorial discretion, the New Jersey court acknowledged the broad discretionary powers and presumption of validity in the conduct of the prosecutor and sought only minimal intrusion into this area. Accordingly, in striking a balance between prosecutorial discretion and fairness to the defendant, the court adopted the following standard for dismissal of indictments: a presumption in favor of die charges requiring a challenging defendant to demonstrate that evidence is clearly lacking to support the charges. 97 N.J. at 142.
The New Jersey court stressed that trial court discretion in granting a hearing should be limited to motions alleging the aggravating factors are plainly without support. The court noted striking of an aggravating factor would be without prejudice. If later supporting evidence came to light before commencement of the sentencing phase and upon notice to the defendant, a sentencing phase could proceed. 97 N.J. at 144-45. Although it found California case law distinguishable because California law required that evidence of “special circumstances” justifying imposition of a death penalty be alleged in accusatoiy pleadings presented by the grand jury, the New Jersey court noted with approval the limited review provided for in Ghent. 97 N.J. at 145. See also State v. Matulewicz, 115 N.J. 191, 557 A.2d 1001 (1989) (following McCrary). In Ghent, the court allowed pretrial review of the evidence supporting the special circumstances required to impose the death penalty. 153 Cal. Rptr. at 726-27.
Both McCrary and Ghent stand for the proposition that it is not error to allow a pretrial challenge to aggravating factors. However, Kleypas provides no authority holding that a pretrial determination of whether there is sufficient evidence of aggravating circumstances to justify a separate penalty phase trial is constitutionally required. We do not find the reasoning in McCrary in favor of conducting such a determination to be persuasive. Kansas has a specific charge of capital murder and, therefore, an initial determination of whether a case should proceed as a capital offense. In New Jersey, a defendant may be subject to the death penalty for any purposeful murder after the State provides notice of an aggravating factor and there is no prosecutorial check before the case proceeds as a capital-murder case. Due to the nature of this system, the New Jersey court held that some judicial oversight was required. Based on the marked difference between Kansas and New Jersey law, we are not required to fashion such a judicial remedy in order to protect the rights of defendants. We hold that the trial court did not err in failing to allow Kleypas to challenge the sufficiency of the aggravating circumstances prior to the guilt phase of the trial.
Issue 16. Competency to Stand Trial
Kleypas filed two motions alleging that he was incompetent to stand trial. Both were denied by the court after hearing. He contends that the trial court abused its discretion in denying both motions.
Our standard of review on both motions is one of abuse of discretion.
“A criminal defendant is incompetent to stand trial when, because of a mental illness or defect, the defendant is unable to understand the nature and purpose of the proceedings against him or her or where he or she is unable to make or assist in making a defense. K.S.A. 22-3301. On appeal, a reviewing court’s inquiry regarding the decision of a district court that a defendant is competent to stand trial is whether the trial court abused its discretion. State v. Beckham, 255 Kan. 310, 325, 875 P.2d 257 (1994). Judicial discretion is abused where no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. O’Neal, 256 Kan. 909, 911, 889 P.2d 128 (1995).” State v. Barnes, 263 Kan. 249, 263, 948 P.2d 627 (1997).
Kleypas urges this court to apply the above standard to the evidence but argues that the burden of proof at the first hearing was upon the State because the trial court ordered his competency evaluation on its own motion. He cites State v. Cellier, 263 Kan. 54, 70, 948 P.2d 616 (1997):
“The obvious rule is that a party who raises the issue of competence to stand trial has the burden of going forward with the evidence, which will be measured by the preponderance of the evidence standard. When the court itself raises the competency issue, the court is not a party and cannot be responsible for coming forward with the evidence, but it can assign that burden to the State because both the court and the State have a duty to provide due process and to provide a fair trial to an accused.”
However, it is clear that while the trial court appointed Lamed State Security Hospital (Larned Hospital) to evaluate Kleypas, it did so only after the defense counsel filed a motion raising the issue of incompetency. The party who raises the issue of compe tency, not the one who orders the evaluation, is assigned the burden of proof. When opening the first hearing, the trial court explicitly stated: “Approximately a month ago the Court ordered that the defendant’s competency be determined pursuant to motion filed by the defendant. Accordingly, he was sent to the Larned State Security Hospital for that competency evaluation.” (Emphasis added.) Contrary to his contention, application of our standard of review properly places the burden of proof on Kleypas.
A. First Motion
On March 7, 1997, Kleypas filed a notice of incompetency to stand trial. Attached to the notice was an. affidavit signed by the defense counsel attesting to Kleypas’ behavior. Also attached was an affidavit of Dr. Jonathan Lipman, a neuropharmacologist, attesting to his findings after an evaluation of Kleypas in June 1996, and Dr. Gerald Gentry, attesting to his observations of Kleypas in August and September 1996. The final attachment was a 1977 report from Dr. Emasue Snow, apparently conducted and written for Kleypas’ defense in the murder trial of Bessie Lawrence.
The trial court held a hearing on April 11, 1997. Dr. Ekkehard Othmer testified for the defense, and Dr. J.L. Fernando, of Lamed Hospital, testified for the State. Dr. Fernando testified that Kleypas was clearly competent to stand trial and that it was “not even a close call.” Dr. Fernando testified that Lamed Hospital did not perform comprehensive testing on Kleypas because such extensive evaluation is usually reserved for marginal competency cases or where it is necessary to determine the existence of mental disease or defect as required for a potential insanity defense, which was not the case here. Dr. Femando noted that Kleypas was aware of the serious nature of the charges against him and the potential consequences of the charges. It was Dr. Fernando’s opinion that Kleypas would be able to work with his attorneys as demonstrated when Kleypas refused to sign a release of information consent form without first consulting his lawyers. Dr. Femando testified that Kleypas’ thought processes were organized and there was no evidence of auditory or visual hallucinations during Kleypas’ stay at Lamed Hospital. Lamed Hospital staff did not observe evidence of bizarre behavior or response to unseen stimuli and, in general, observed that Kleypas acted appropriately throughout his stay.
Dr. Othmer did not evaluate Kleypas; rather, he evaluated the adequacy of Lamed Hospital’s evaluation. It was Dr. Othmer’s opinion that Lamed Hospital’s evaluation process was inadequate to provide a rehable conclusion on Kleypas’ competency to stand trial. He criticized the lack of thorough psychological testing of Kleypas, although admitting that in cases where the individual is obviously competent, such an evaluation process could be shortened. Dr. Othmer also took issue with Lamed Hospital’s assignment of a Global Assessment Function (GAF) score of 40. The GAF is computed on a scale of 1 to 100 with anyone rated at 50 or below requiring hospitalization. The GAF measures an individual’s ability to relate or interact with others in an appropriate way. Dr. Othmer found Kleypas’ score of 40 inconsistent with Dr. Fernando’s opinion that Kleypas was competent to stand trial. Dr. Fernando, however, based the low GAF score on Kleypas’ prior murder and his present capital-murder charge, rather than a lack of contact with reality.
After consideration of the testimony of both psychiatrists regarding Kleypas’ GAF score and concluding that a score of 40 under the facts of this case was not inconsistent with a finding of competency, the trial court ruled:
“Competency to stand trial is defined as the ability of a defendant to understand the nature and purpose of the proceedings against him and to make or assist in making a defense. State v. Peckham, 255 Kan. 310. There is simply nothing of significance in the testimony or the exhibits of significance that militates against a finding of competency. SSH [Lamed Hospital] believes the defendant is obviously competent and that this is not even a close call. Rather than presenting evidence that the defendant is incompetent, counsel have only attacked the thoroughness of the SSH evaluation. Even Dr. Othmer did not state that the defendant is incompetent, rather, he believes that additional testing is necessary before that determination can be made. This position goes to the weight of the evidence. Ultimately the only evidence on the issue of competency that was presented, and can therefore be weighed, is evidence supporting a finding of competency.
“The above-cited Peckham case is instructive as it involved a determination of competency base upon three factors: first, the lack of evidence of incompetency; second, as expert’s direct opinion of competency; and third, the court’s own observations. Peckham, at 325. In the present matter, there is no evidence of incom petency. Secondly, the only direct opinion on the issue of competency was Dr. Fernando’s opinion that the defendant is indeed competent for trial. Dr. Othmer was unable to render an opinion of the issue of competency. Indeed, Dr. Othmer has never interviewed the defendant. Third, the Court’s observations of the defendant in court support a finding of competency. The defendant has always responded appropriately to questions posed by the Court, the defendant answered questions appropriately the sole time he has testified in this matter, and die Court has never observed any inappropriate conduct or mannerism exhibited by die defendant during the many hearings held to date in this matter. Moreover, the Court notes the defendant’s responses to the so-called Sentence Completion Test, the form entitled “C.S.T.,” in the Psychiatric section of Defense Exhibit #1. Said form clearly demonstrates that the defendant has the correct perception of this matter.
“Based upon the above-referenced findings and comments, all exhibits submitted, the testimony of the competency hearing, and arguments of counsel, the Court finds that the defendant understands the nature and the purpose of the proceedings against him and is able to make or assist in the making of his defense. The defendant is accordingly found competent to stand trial. In the absence of any evidence to the contrary, the Court finds that the defendant has been unable to sustain his burden of proving incompetency by a preponderance of the evidence. Moreover, the Court believes that the evidence of competency is sufficiently substantial enough that the Court would nevertheless find the defendant competent to stand trial even were the burden to be placed upon the State.”
On appeal, Kleypas raises many of the same issues addressed by the trial court. Rather than attacking the trial court’s finding of competency, Kleypas complains of the inadequacy of the Lamed Hospital evaluation. The additional arguments and authority advanced by Kleypas fail to demonstrate an abuse of discretion. Accordingly, under our standard we affirm the trial court’s determination as to Kleypas’ first motion.
B. Second Motion
On June 30,1997, within 2-1/2 months of the trial court’s initial determination that Kleypas was competent to stand trial, Kleypas filed a second notice of incompetency. In addition to attacking the prior competency hearing, this notice alleged that Kleypas was experiencing ongoing memory lapses or amnesia. The notice included an affidavit from Gaye Nease, an attorney employed as a mitigation specialist by the Kansas Death Penalty Defense Unit. In the affidavit, Nease brought up several instances regarding Kley pas’ mental processes interfering with his ability to communicate with counsel. However, Nease did not testify at the second competency hearing.
Despite the trial court’s opinion that the notice provided no new information and was in the nature of a delaying tactic, the court ordered another competency evaluation to be performed by Wyandot Mental Health Center (WMHC).
Kleypas refused to be interviewed by WMHC before consulting with his attorneys. He was allowed to consult with his attorneys, and the interview was rescheduled. Kleypas again refused to cooperate with WMHC. The trial court held a hearing on July 7, 1997. The only evidence presented was that of Mark Roberts, a psychologist at WMHC, who testified that Kleypas had refused testing and that he recommended further testing as merely standard operating procedure when someone refused to be interviewed. The trial court offered Kleypas another chance to be evaluated, but he again declined.
The trial court concluded that the allegations in Kleypas’ second notice of incompetency were essentially the same as contained in the first notice; that Kleypas, in essence, was attempting to attack the first finding of competency. The court noted the affidavit of Nease and that she was not present for testimony or cross-examination. The trial court found Kleypas’ refusal to be interviewed by WMHC before he consulted with his attorneys again suggests he understands the seriousness of the charges and does not suggest any incompetency. As Kleypas’ actions precluded any further attempt to determine his competency and in view of the lack of evidence presented at this hearing, the trial court concluded that it could only find Kleypas competent to stand trial.
After the trial court ruled against Kleypas on the competency issue, defense counsel Wood stated he was prepared to take the witness stand and provide evidence on Kleypas’ alleged amnesia, referring to an earlier motion filed by defense counsel titled “Notice of Necessity of Defense Counsel Becoming a Witness for the Accused and Proffer of Material Evidence to Which Counsel is the only Witness.” This earlier motion claimed that Kleypas could not recall the initial interrogation by Agent Williams and Detective Hite or that he told defense counsel that Agent Williams and Hite threatened him on the car ride back to Kansas; that he could not recall advising his attorneys that Agent Williams rehearsed what would be covered on the videotaped confession; and that he did not respond “ ‘[t]he long and the short of it, yes,’ ” to the question of whether he killed C.W. but instead said, “ 1 guess I did, I’m not sure.’ ”
The trial court did not allow Wood to testify, indicating that it was not doubting Wood’s word but instead was finding that even if the testimony were allowed, amnesia alone would not be sufficient to make a finding of incompetency, citing State v. Owens, 248 Kan. 273, 807 P.2d 101 (1991).
Kleypas argues the trial court’s refusal to hear testimony from the defense counsel on the competency issue is reversible error. He claims the refusal was a due process violation as the defense counsel’s testimony was the best evidence of Kleypas’ behavior since counsel had spent countless hours conversing with Kleypas. Kleypas contends the overwhelming weight of federal and state law supports his argument that defense counsel “must” be permitted to testify at a competency hearing.
The authorities cited by Kleypas support the view that an attorney may testify at a competency hearing. However, the general principle in those cases is that the attorney’s testimony may not violate the attorney-client privilege and, thus, is permitted where it does not reveal the substance of any confidential communication but instead focuses on the attorney’s observations of matters that are not confidential, such as the defendant’s behavior or demeanor. See Howell v. United States, 282 F. Supp. 246, 249 (E.D. Ill. 1968); Bishop v. Superior Court In & For Puma Cty., 150 Ariz. 404, 408, 724 P.2d 23 (1986); Manning v. State, 766 S.W.2d 551, 556-57 (Tex. App. 1989).
Regarding amnesia as a basis for a claim of incompetency, we have held:
“Amnesia alone should not supply the basis for declaring a defendant incompetent to stand trial. Amnesia is a factor to be considered in determining whether the defendant is able to meet the test of competency to stand trial and to obtain a fair trial. State v. Gilder, 223 Kan. 220, Syl. ¶ 3, 574 P.2d 196 (1977). See Annot, 46 A.L.R.3d 544. The danger of false claims is great. Fajeriak v. State, 520 P.2d 795, 802 (Alaska 1974). Amnesia can easily be feigned. State v. McClendan, 103 Ariz. 105, 108, 437 P.2d 421 (1968).” Owens, 248 Kan. at 280.
Kleypas acknowledges that amnesia alone does not require a finding of incompetence; however, he contends there was evidence of significant amnesia which “hamstrung” his ability to effectively communicate with his defense team.
There was no evidence of Kleypas’ memory deficit from Larned Hospital’s evaluation of him. Kleypas gave no indication he had any amnesia for the significant events constituting the offense. Kleypas’ suggestion that he refused the second competency evaluation “contrary to the advice of counsel” is self serving and not supported by the record.
It is true that the “failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent . . . deprives him of his due process right to a fair trial.” Drope v. Missouri, 420 U.S. 162, 172, 43 L. Ed. 2d 103, 95 S. Ct. 896 (1975). However, the court’s failure to allow the defense counsel to testify regarding Kleypas’ alleged amnesia did not deprive Kleypas of his due process rights. The procedure used here was adequate to protect Kleypas’ due process rights, and the evidence supported the trial court’s finding of competency.
We conclude that under the circumstances of this case, neither the refusal of the trial court to allow Wood to testify nor the finding that Kleypas was competent to stand trial was an abuse of discretion on the part of the trial court. State v. Peckham, 255 Kan. 310, 325, 875 P.2d 257 (1994). Even considering Wood’s proffered testimony, the trial court did not abuse its discretion in determining that Kleypas was competent to stand trial. Although Wood proffered that Kleypas suffered from amnesia which affected his ability to communicate effectively with counsel, Kleypas’ evaluation from Larned Hospital showed no such memory deficit. Under the circumstances, any error in the failure to consider Wood’s testimony was harmless.
Issue 17. Removal of Prospective furor Molden for Cause — United States Constitution
Kleypas contends that the trial court erred in removing prospective juror Molden for cause due to her moral and religious beliefs about the death penalty. During voir dire, Molden stated that her moral and religious beliefs would prevent her from returning a verdict which would result in the execution of another human being. However, upon questions posed by the defense counsel, she indicated that it would be possible for her to return a death penalty if the case fell within her list of very few exceptions. These exceptions were not identified, although Molden said she would know at once if the case met her exceptions. The defense counsel did not object to the removal of Molden for cause.
We have held that challenges for cause are matters left to the sound discretion of the trial court, which is in a better position to view the demeanor of prospective jurors during voir dire. A trial court’s ruling on a challenge for cause will not be disturbed on appeal unless it is clearly erroneous or amounts to an abuse of discretion. State v. Dixon, 248 Kan. 776, 788, 811 P.2d 1153 (1991).
Kleypas argues that the court abused its discretion because the juror’s response that she could return a death penalty for one of her very few exceptions rehabilitated her as a qualified juror under Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968), and Wainwright v. Witt, 469 U.S. 412, 83 L. Ed. 2d 841, 105 S. Ct. 844 (1985). In Witherspoon, the United States Supreme Court held “that a sentence of death could not be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” 391 U.S. at 522. Witt clarified the standard for determining when a prospective juror may be excluded for cause because of his or her views on the death penalty. The Court stated that a prospective juror may be excluded for cause because of his or her views on capital punishment where “the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” 469 U.S. at 424. The Court said that “this standard likewise does not require that a juror’s bias be proved with ‘unmistakable clarity.’ ” 469 U.S. at 424.
The Witt decision was grounded in the Sixth and Fourteenth Amendments and the right to an impartial jury. 469 U.S. at 422-23. K.S.A. 22-3410(2)(i) allows a party to challenge any prospective juror for cause when a juror’s “state of mind with reference to the case or any of the parties is such that the court determines there is doubt that he can act impartially and without prejudice to the substantial rights of any party.”
Kleypas argues that the facts in this case are strikingly similar to those in Gray v. Mississippi, 481 U.S. 648, 95 L. Ed. 2d 622, 107 S. Ct. 2045 (1987); Farina v. State, 680 So. 2d 392 (Fla. 1996); and Clark v. State, 929 S.W.2d 5 (Tex. Crim. App. 1996). However, in each of the cases relied upon by Kleypas, the juror, although opposed to the death, unequivocally stated that she would follow the instructions even if it resulted in the imposition of the death penalty. In the case at hand, the State asked whether Molden’s beliefs would substantially impair her ability to follow the instructions. She stated: “Yeah, I guess I would put it like that, yeah.” Her comments following this statement regarding special cases where she might impose the death penalty did not rehabilitate her in this regard. Clearly, from her testimony, Molden’s ability to follow the instructions would have been dependent on whether the case was one of her “very few exceptions,” a standard she was unable to articulate. Thus, the court’s decision that Molden’s views would “ prevent or substantially impair the performance of [her] duties as a juror in accordance with [her] instructions and [her] oath’ ” was not clearly erroneous or an abuse of discretion. See Witt, 469 U.S. at 424.
Issue 18. Removal of Five jurors for Cause — Kansas Constitution
Kleypas next argues about the removal of five prospective jurors, including Molden, for cause. We have already discussed the removal of Molden above, concluding that it was not error under Witt. Kleypas recognizes that the removal of the other four prospective jury members, Ash, Watson, Neal, and Tinder may also have been permissible under the standard in Witt. Kleypas contends, however, that the removal of the five prospective jurors violated § 7 of the Kansas Constitution Bill of Rights, which he claims provides broader protection than the First Amendment to the United States Constitution and should be read to provide a further limitation on the State’s power to exclude prospective jurors based on their religious opposition to the death penalty.
Section 7 of the Kansas Constitution Bill of Rights provides:
"The right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship; nor shall any control of or interference with the rights of conscience be permitted, nor any preference be given by law to any religious establishment or mode of worship. No religious test or property qualification shall be required for any office of public trust, nor for any vote at any election, nor shall any person be incompetent to testify on account of religious belief.”
Kleypas contends an “office of public trust” is equivalent to “public office” which would include a juror, citing K.S.A. 21-3110(19)(c) (“public officer” includes a “judicial officer” which in turn includes a juror) and State v. Monahan, 72 Kan. 492, 501, 84 Pac. 130 (1905) (“office of public trust” is equivalent to “public office”). Consequently, Kleypas maintains the trial court cannot require a religious test of an individual holding the office of juror. Thus, according to Kleypas’ theory, excluding a juror for cause on the basis of his or her religious belief concerning the death penalty is an impermissible “religious test,” violating § 7 of the Kansas Constitution Bill of Rights.
K.S.A. 43-156 provides that “[n]o person shall be excluded from service as a grand or petit juror in the district courts of Kansas on account of race, color, religion, sex, national origin, or economic status.” Section 7 of the Kansas Constitution Bill of Rights does not provide any greater hmitation than already provided under K.S.A. 43-156. The trial court excused Ash, Watson, Neal, Tinder, and Molden due to their inability to be impartial and follow their oath as jurors regarding consideration of the death penalty, not on religious grounds. Further, where one of the jurors cited religious beliefs as a basis for objecting to the death penalty, religion did not appear to be the sole basis for the formation of their beliefs as exemplified by juror Ash’s comment that his views on the death penalty “developed as a result of life experiences.”
We conclude that the trial court did not abuse its discretion by excusing Ash, Watson, Neal, Tinder, and Molden for cause.
Issue 19. Denial of a Separate Sentencing lury
Kleypas contends that the trial court erred in denying his request for a separate sentencing juiy. He argues that he was prejudiced because the same jury that heard his guilt phase also heard the penalty phase argument.
K.S.A. 21-4624(b) governs juries in capital cases and provides:
“Except as provided in K.S.A. 21-4622 and 21-4623, and amendments thereto, upon conviction of a defendant of capital murder, the court, upon motion of the county or district attorney, shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death. The proceeding shall be conducted by the trial judge before the trial jury as soon as practical. If any person who served on the trial jury is unable to serve on the jury for the sentencing proceeding, the court shall substitute an alternate juror who has been impaneled for the trial jury. If there are insufficient alternate jurors to replace trial jurors who are unable to serve at the sentencing proceeding, the trial judge may summon a special jury of 12 persons which shall determine the question of whether a sentence of death shall be imposed. Jury selection procedures, qualifications of jurors and grounds for exemption or challenge of prospective jurors in criminal trials shall be applicable to the selection of such special jury. The jury at the sentencing proceeding may be waived in the manner provided by K.S.A. 22-3403 and amendments thereto for waiver of a trial jury. If the jury at the sentencing proceeding has been waived or the trial jury has been waived, the sentencing proceeding shall be conducted by the court.” (Emphasis added.)
The express provisions of the statute undermine Kleypas’ argument. We are not at liberty to interpret other provisions of the statute to require a separate jury where, as here, express provisions of the statute provide otherwise.
The provisions of K.S.A. 21-4624(b) are constitutionally sound. The United States Supreme Court has repeatedly upheld legislatures’ enactments of unitary or same jury procedures in capital cases. Lockhart v. McCree, 476 U.S. 162, 180, 90 L. Ed. 2d 137, 106 S. Ct. 1758 (1986); Spaziano v. Florida, 468 U.S. 447, 464, 82 L. Ed. 2d 340, 104 S. Ct. 3154 (1984); Gregg v. Georgia, 428 U.S. 153, 168, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976). Lockhart identified several interests in support of a unified jury: (1) The same jurors responsible for deciding guilt should also have the responsibility for deciding punishment, the two questions being intertwined; (2) in some cases the defendant may benefit from the same jury system if the jury has any “residual doubts” concerning the strength of the evidence,- and (3) evidence presented during the guilt phase, having a bearing on the penalty phase, would not have to be presented twice. 476 U.S. at 181. The trial judge in this case specifically identified some of the above advantages in denying the defendant’s motions.
Kleypas argues that the failure to provide for a separate sentencing juiy puts him in the untenable position of being unable to voir dire the jury as to its bias regarding certain aggravating circumstances, such as his prior record, for fear of prejudicing the jury in the guilt phase. He cites authority from Oregon and New Jersey involving a similar issue to the one he now raises. See State v. Biegenwald, 126 N.J. 1, 594 A.2d 172 (1991); State v. Pinnell, 311 Or. 98, 806 P.2d 110 (1991). However, it must be observed that each state interprets its own law and none of the authority cited is controlling in the interpretation of Kansas law.
K.S.A. 21-4624(b) provides a method for the defendant in every capital-murder case to remove biased jurors during the penalty phase. The defendant is entitled to ask questions during voir dire before the sentencing phase of the trial begins. Here, Kleypas chose not to voir dire the jurors concerning the binding effect of his prior murder conviction or any of the aggravating circumstances. However, that procedure existed as a method of removing potentially biased jurors for cause. See Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992). The provisions of K.S.A. 21-4624(b) anticipate that persons who served as jurors during trial may not be available for the sentencing phase of the trial:
“If any person who served on the trial jury is unable to serve on the jury for the sentencing proceeding, the court shall substitute an alternate juror who has been impaneled for the trial jury. If there are insufficient alternate jurors to replace trial jurors who are unable to serve at the sentencing proceeding, the trial judge may summon a special jury of 12 persons which shall determine the question of whether a sentence of death shall be imposed.”
We conclude, based upon the express provision of K.S.A. 21-4624(b), that the trial court correctly denied Kleypas’ motion for a separate sentencing jury.
Issue 20. Alleged Judicial Misconduct During jury Orientation
Kleypas contends that a comment made by the trial court during jury orientation was error and prejudiced his right to a fair trial. During jury orientation, the prospective jurors were separated into two groups. As part of its opening comments before both groups, the trial court provided a brief general overview of the justice system and, in particular, juries and their function. In giving this overview, the trial court stated: “Under certain circumstances, parties are entitled to a jury trial when they are not otherwise able to settle their controversies.”
The next morning, Kleypas filed a motion for mistrial and discharge of panel and/or corrective instruction. Kleypas argued the comment would lead the jury to believe that it was within Kleypas’ power to “settle the controversy” but that he had not done so. Further, the comment suggested to the jury that there had been failed plea negotiations indicating his guilt on charges filed. The proffered curative instruction stated: “Mr. Kleypas has an absolute right to a jury trial under the constitution. The State of Kansas is responsible for the necessity of this case going to trial as the State has refused any attempt to resolve the matter short of a death sentence for Mr. Kleypas.” In chambers before the start of voir dire, the trial court denied the motion, stating that it was the court’s, opinion that nothing untoward was conveyed to the jury by the court’s opening comments. The fact that Kleypas offered to plead and the offer refused by the State was not known to the jury and until this point not known to the trial court. The court stated that in fact the curative instruction would convey to the jury that Kleypas had offered to plea and make a suggestion of guilt.
This court analyzes jury orientation comments under the judicial misconduct standard of review. State v. Gadelkarim, 256 Kan. 671, 676, 887 P.2d 88 (1994). Under that standard:
“Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant or require the granting of a new trial, it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. A mere possibility of prejudice from a remark of the judge is not sufficient to overturn a verdict or judgment. If a proper and reasonable con struction will render the remark unobjectionable, die remark is not prejudicial. State v. Nguyen, 251 Kan. 69, Syl. ¶¶ 4, 5, 833 P.2d 937 (1992).” 256 Kan. at 677.
Kleypas contends the trial court’s comments were prejudicial and required a mistrial or a curative instruction. As this did not occur, he believes a new trial is warranted. Kleypas argues the comment was prejudicial as it “denigrated” his constitutional right to a juiy trial. He further argues that there was a reasonable likelihood that the jury construed the statement as an indication that Kleypas was responsible for the parties’ inability to settle their controversies and implied there had been unsuccessful plea negotiations and, thus, an acknowledgment of guilt on the defendant’s part, citing State v. Miller, 259 Kan. 478, 485-86, 912 P.2d 722 (1996).
In Miller, before the trial court dismissed those venire members who were not seated on the jury, the court stated:
“ And I just want to tell you that we appreciate the fact you came in, because if we didn’t have persons such as yourselves who were willing to take a day out of their lives to come down here to make up a jury panel for us, we’d never get juries. And the reality is that for every case we try, we end up handling nearly twenty of them without the necessity of a trial because people involved in the process know that citizens such as yourselves are willing to come down here and make up juries for us and that we have a system that will, in fact, work.’ ” 259 Kan. at 485.
Miller claimed that this comment denied him a fair and impartial trial. We held that Miller showed no prejudice from the remark and that the remark, read in context, did not suggest that Miller should have pled guilty, and found no error. 259 Kan. at 486.
The trial court’s brief statement was lifted from prepared general jury orientation comments. We conclude that the remarks of the trial judge in no way referred to, nor could even be inferred as referring to, anything specific in Kleypas’ case. The remark was unobjectionable and not prejudicial. The trial court did not err in refusing to give the corrective instruction suggested by Kleypas.
Issue 21. Alleged Batson Violation for Peremptory Strike of furor Wheeler
Kleypas argues that the State’s peremptory strike of prospective juror Wheeler violated the United States Supreme Court decision in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). He contends that the State struck Wheeler on the basis of gender and that the gender-neutral reasons given for the strike — that Wheeler’s roommate was an alcoholic and that Wheeler had indicated that she was unsure whether the death penalty was a necessary punishment — were unlawful reasons.
Kleypas further argues that striking Wheeler because of her association with an Americans with Disabilities Act (ADA) disability-qualified individual is in itself a Batson violation and cannot be a gender-neutral reason. Alcoholism meets the definition of a disability for ADA purposes. See Miners v. Cargill Communications, Inc., 113 F.3d 820, 823 n.5 (8th Cir. 1997); Senate Sergeant at Arms v. Senate Fair Emp. Pract., 95 F.3d 1102, 1105 (Fed. Cir. 1996).
It is questionable whether Batson applies to ADA disabilities. See U. S. v. Santiago-Martinez, 58 F.3d 422, 423 (9th Cir. 1995). In Santiago-Martinez, the Ninth Circuit Court of Appeals held that a peremptory strike based on obesity did not violate Batson even though obesity was a recognized disability for purposes of the ADA. The Ninth Circuit limited any Batson protection beyond gender and race to those classes to which heightened scrutiny under the Equal Protection Clause would apply. 58 F.3d at 423. In so holding, the Ninth Circuit noted that the United States Supreme Court in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128 L. Ed. 2d 89, 114 S. Ct. 1419 (1994), had stated that “[p]arties may . . . exercise their peremptory challenges to remove from the venire any group . . . subject to ‘rational basis’ review.” 58 F.3d at 423. See J.E.B., 511 U.S. at 143. It has been held that alcoholics are not a suspect or quasi-suspect class for equal protection analysis and are thus subject only to rational basis review. See Mitchell v. Commissioner of the Social Sec. Admin., 182 F.3d 272, 274 (4th Cir. 1999); Gazette v. City of Pontiac, 41 F.3d 1061, 1067 (6th Cir. 1994).
Because alcoholism is subject only to a rational basis review under the Equal Protection Clause, Batson does not prohibit strikes based on alcoholism and Kleypas’ argument in this respect fails.
In State v. Edwards, 264 Kan. 177, 192-94, 955 P.2d 1276 (1998), we summarized the requirements of Batson and its progeny as follows:
“In Batson, the United States Supreme Court set out a framework designed to prevent the discriminatory exclusion of jurors on the basis of race. Under the Batson framework, the defendant must first make a prima facie case showing that the prosecutor has exercised peremptory challenges on the basis of race. Once such a showing has been made, the burden shifts to the prosecutor to articulate a race-neutral reason for striking the juror. The trial court must then determine whether the defendant has carried the burden of proving purposeful discrimination. See Hernandez v. New York, 500 U.S. 352, 358-59, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991).
“The Court in Batson found that in order to establish a prima facie case, the defendant must first show that he or she is a member of a cognizable racial group and that the prosecution has exercised peremptory challenges to remove from the venire members of the defendant’s race. Batson, 476 U.S. at 96. The defendant is entitled to rely on the fact that peremptory challenges constitute a jury selection practice that permits those who are of a mind to discriminate to do so. The defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude jurors from the jury on account of their race. 476 U.S. at 96.
“This framework has been extended beyond the initial set of circumstances in Batson. In Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991), the United States Supreme Court determined that the Batson framework extended to a challenge by a white defendant to the prosecutor’s use of peremptory strikes to exclude prospective black jurors on the basis of race. In reaching this conclusion, the Court determined that the Equal Protection Clause prohibits the use of peremptory challenges to exclude otherwise qualified and unbiased persons from the jury panel solely by reason of their race and that a defendant has standing to raise the juror’s equal protection claims. 499 U.S. at 409-15. Further, in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128 L. Ed. 2d 89, 114 S. Ct. 1419 (1994), the Court extended the Batson framework to prohibit discrimination based on gender. In so doing, the Court stated:
‘[T]he Equal Protection Clause prohibits discrimination in jury selection on the basis of gender, or on tire assumption that an individual will be biased in a particular case for no reason other than the fact that the person happens to be a woman or happens to be a man. As with race, the “core guarantee of equal protection, ensuring citizens that their State will not discriminate . . ., would be meaningless-were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ [gender].” [Citation omitted.].’ 511 U.S. at 146.
“These rulings have changed the requirements for the establishment of aprima facie case. The defendant need no longer establish that he or she is a member of a cognizable minority group since die focus is now on the individual rights of juiy members not to be excluded on die basis of race or sex. See Powers v. Ohio, 499 U.S. at 415; J.E.B. v. Alabama ex rel. T.B., 511 U.S. at 140-41. Thus, in order to establish a prima facie case, the defendant need only show that the prosecution has exercised peremptoiy challenges to remove from the venire members of a certain race or gender and that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude die jurors from the jury on account of their race or gender. Batson, 476 U.S. at 96.”
Kleypas contends that the alternate reason for striking Wheeler, that she was unsure whether the death penalty was an appropriate punishment in society, was insufficient. When asked on the juror questionnaire if the death penalty was a necessary punishment in our society, Wheeler had marked “unsure.” Later, on voir dire, Wheeler indicated that she could impose a sentence of death in an appropriate case. Kleypas contends that other jurors whom the State did not strike demonstrated a greater aversion to the death penalty.
The ultimate question with regard to whether a Batson violation existed is whether the State has purposefully discriminated. State v. Walston, 256 Kan. 372, 381, 886 P.2d 349 (1994). Kleypas objected to the strike against Wheeler on the basis of gender. Certainly, the fact that the State struck Wheeler, a woman, due to her aversion to the death penalty, while leaving prospective male jurors who also indicated such an aversion is circumstantial evidence of discrimination. See Walston 256 Kan. at 381. However, the defendant failed to show at the Batson hearing that similar prospective male jurors were not struck. Therefore, the trial court did not err in finding that there was no discrimination.
Kleypas’ final argument with regard to the strike of Wheeler is that it was improper for the State to use its peremptoiy strike to remove Wheeler from the jury on the basis of her aversion to imposing the death penalty. However, appellate courts addressing this issue have found such a practice not to be improper. See Pitsonbarger v. Gramley, 141 F.3d 728 (7th Cir.), cert. denied 525 U.S. 984 (1998); Brown v. Dixon, 891 F.2d 490 (4th Cir. 1989), cert. denied 495 U.S. 953 (1990); Zuern v. Tate, 101 F. Supp. 2d 948 (S.D. Ohio 2000); State v. Bolton, 182 Ariz. 290, 302, 896 P.2d 830 (1995); State v. King, 249 Conn. 645, 661-62, 735 A.2d 267 (1999); Manning v. State, 735 So. 2d 323, 339 (Miss. 1999); State v. Bjorklund, 258 Neb. 432, 456, 604 N.W.2d 169 (2000); State v. Clark, 128 N.M. 119, 131, 990 P.2d 793 (1999).
We hold that the trial court did not err in allowing the peremptory strike of prospective juror Wheeler.
Issue 22. Cumulative Error in the Guilt Phase
Kleypas argues that each of the above errors are independent grounds for reversal; however, if this court concludes that no single error requires reversal then the cumulative effect of all the errors requires reversal. ‘We have recognized that cumulative trial errors may be so great as to require reversal of a defendant’s conviction. See State v. Castoreno, 255 Kan. 401, 411, 874 P.2d 1173 (1994). The test is whether the totality of circumstances substantially prejudiced the defendant and denied him or her a fair trial. 255 Kan. at 411.” State v. Carr, 265 Kan. 608, 625-26, 963 P.2d 421 (1998).
Based upon the above analysis of the issues raised by Kleypas regarding the guilt phase, we conclude that under the totality of the circumstances, Kleypas was not denied a fair trial and there was no cumulative error sufficient to require reversal.
Guilt Phase — Conclusion
Based upon our findings above, the defendant’s convictions of capital murder, attempted rape, and aggravated burglary are affirmed.
PART II — CONSTITUTIONAL ISSUES
We turn now to the issues Kleypas raises concerning the constitutionality of the death penalty in Kansas. These issues include:
Constitutionality of the Weighing Equation
Constitutional and Evidentiary Challenge to the Avoid Arrest Aggravating Circumstance
Constitutional Challenge to the Definition of the Heinous, Atrocious, or Cruel Manner Aggravating Circumstance
Proportionality of Sentence
Constitutionality of Upward Departure for Conviction of Aggravated Burglary
Instruction on Mercy
Standard for Admission of Evidence During the Penalty Phase
Effect of a Guilty Plea Under K.S.A. 21-4624
The Right to Life Under the Kansas Constitution
Failure to Make Written Findings as to Mitigators
Lethal Injection as Cruel and Unusual Punishment
Death Penalty Under International Law
Issue 23. Constitutionality of Weighing Equation
Kleypas argues that the weighing equation set forth in K.S.A. 21-4624(e) violates the state and federal constitutional prohibitions against cruel and unusual punishment and the guarantees of due process because it mandates a sentence of death when aggravating and mitigating circumstances are found to be in equal balance. Under the facts of this case, we agree that the weighing equation violates the Eighth and Fourteenth Amendments to the United States Constitution.
K.S.A. 21-4624(e) provides:
“If, by unanimous vote, the juiy finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S .A. 21-4625 and amendments thereto exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced to death; otherwise, the defendant shall be sentenced as provided by law.”
Kleypas argues that mandating death when aggravating and mitigating circumstances are found to be in equal balance produces unrealistic results, creates a presumption of death, shifts the burden of proof to the defendant to prevent imposition of a death sentence, and precludes the jury from giving effect to the mitigating evidence.
The constitutionality of a statute is a question of law over which this court has de novo review. State v. Ponce, 258 Kan. 708, 709, 907 P.2d 876 (1995). We must decide if the weighing equation in the statute violates the Eighth Amendment to the United States Constitution because it mandates a sentence of death if the jury finds that the mitigating and aggravating circumstances are in equipoise. Equipoise is a result of mandating the death sentence if the mitigating circumstances do not outweigh the aggravating circumstances.
Kleypas contends that the Kansas weighing formula is unique among the 38 death penalty states by mandating a death sentence when there is equipoise. Although no other state statute has identical language to our statute, five states have similar language resulting in the same weighing equation.
Kleypas first raised the equipoise issue by motion filed in the district court. The district court denied the motion, finding that the United States Supreme Court approved such a statutory scheme in Proffitt v. Florida, 428 U.S. 242, 49 L. Ed. 2d 913, 96 S. Ct. 2960 (1976). The district court’s reliance on Proffitt is misplaced. In Proffitt, the Supreme Court noted:
“The jury found the defendant guilty as charged. Subsequently, as provided by Florida law, a separate hearing was held to determine whether the petitioner should be sentenced to death or to life imprisonment. Under the state law that decision turned on whether certain statutory aggravating circumstances surrounding the crime outweighed any statutory mitigating circumstances found to exist.” 242 U.S. at 245-46.
Justice White in concurring also noted: “Under Florida law, the sentencing judge is required to impose the death penalty on all first-degree murderers as to whom the statutory aggravating factors outweigh the mitigating factors.” 242 U.S. at 260 (White, J., concurring). The Florida weighing equation is not the same as ours. Under the Florida weighing equation, a death sentence cannot be imposed if there is a finding that equipoise easts. Proffitt does not support the district court’s decision in the present case. In addition, the Florida jury returns an advisory verdict, and the judge has the ultimate responsibility for sentencing the defendant.
Kleypas cites three cases in support of his constitutional challenge to K.S.A. 21-4624(e). The first is State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987). The New Jersey statute in effect at the time of the crime stated in part: “ Tf the jury or the court finds that any aggravating factor exists and is not outweighed by one or more mitigating factors, the court shall sentence the defendant to death.’ ” 106 N.J. at 58. The court considered the weighing equation sua sponte, finding it constituted plain error. Thé court stated:
“The error concerns the jury’s function in balancing aggravating factors against mitigating factors, a function that leads directly to its ultimate life or death decision. Its effect was to allow a death sentence without a finding that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt. We hold that such a finding was required by the Act at the time of defendant’s trial as a matter of fundamental fairness and that its absence mandates reversal and retrial of the penalty decision. Legislative policy also mandates this result, as indicated by the 1985 amendments to the Act; those amendments, furthermore, provide an independent basis for this result.” 106 N.J. at 53.
The court made it clear that the former rather than the latter was ultimately the basis for its decision: “If anywhere in the criminal law a defendant is entitled to the benefit of the doubt, it is here. We therefore hold that as a matter of fundamental fairness the jury must find that aggravating factors outweigh mitigating factors, and this balance must be found beyond a reasonable doubt.” 106 N.J. at 62.
In People v. Young, 814 P.2d 834 (Colo. 1991), the Colorado Supreme Court considered the constitutionality of their statutory weighing equation which required the jury return a sentence of death if the jury found insufficient mitigating factors to outweigh the statutory aggravating factors. The court noted that under this formula a death sentence was mandated if the “mitigators and aggravators are equally balanced.” 814 P.2d at 839. The court concluded that the statute violated the state constitution provision against cruel and unusual punishment, stating:
“The result of a decision that the relevant considerations for and against imposition of the death penalty in a particular case are in equipoise is that the jury cannot determine with reliability and certainty that die death sentence is appropriate under the standards established by the legislature. A statute that requires a death penalty to be imposed in such circumstances without the necessity for further deliberations, as does section 16-ll-103(2)(b)(III), is fundamentally at odds with die requirement that the procedure produce a certain and reliable conclusion that die death sentence should be imposed. That such a result is mandated by statute rather than arrived at by a jury adds nothing to the reliability of the death sentence. The legislature has committed the function of weighing aggravators and mitigators to the jury. A jury determination that such factors are in equipoise means nothing more or less than that the moral evaluation of the de fendant’s character and crime expressed as a process of weighing has yielded inconclusive results. A death sentence imposed in such circumstances violates requirements of certainty and reliability and is arbitrary and capricious in contravention of basic constitutional principles. Accordingly, we conclude that the statute contravenes the prohibition of cruel and unusual punishments under article II, section 20, of the Colorado Constitution, and deprives the defendant of due process of law under article II, section 25, of that constitution.” 814 P.2d at 845.
Although the decision in Young rests upon state constitutional grounds, the court found that the United States Supreme Court had not addressed the equipoise issue, stating:
“Key to the United States Supreme Court rulings is the conclusion that a limitation on the class of persons eligible for the death penalty is constitutionally required and may be accomplished by a finding of at least one aggravating factor, and that a weighing of all relevant mitigating factors is constitutionally required before a sentence of death can be imposed on a particular individual. Walton, 110 S. Ct. at 3056 (plurality opinion); Boyde, 110 S. Ct. at 1196; Blystone, 110 S. Ct. at 1083. The basis for these requirements ‘is the principle that punishment should be directly related to the personal culpability of the criminal defendant.’ Penry, 492 U.S. at 319, 109 S. Ct. at 2947. Thus, the Court in Penry stated
“ ‘ “that it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence. Only then can we be sure that the sentencer has treated the defendant as a ‘uniquely individual human bein[g]’ and has made a reliable determination that death is the appropriate sentence.” ’ ” Penry, 492 U.S. at 319, 109 S. Ct. at 2947 (quoting Woodson, 428 U.S. at 304, 96 S. Ct. at 2991) (citation omitted).
Constitutional sufficiency is not assured simply because the jury is not limited in the mitigating factors it may hear and consider. The sentencer must also determine whether those mitigating factors are outweighed by the aggravating factors, Boyde, 110 S. Ct. at 1196; Blystone, 110 S. Ct. at 1083, or, stated alternatively, are sufficient to call for leniency, Walton, 110 S. Ct. at 3056. We find nothing in the reasoning in the United States Supreme Court cases cited that casts doubt on our conclusion that the Colorado death penalty statute fails to satisfy our own constitutional standards. We do not believe that the United States Supreme Court cases can be fairly read to contain any suggestion that the death penalty can be imposed when the sentencer finds aggravating and mitigating considerations to be equally balanced. Even if we are wrong in our understanding of federal precedent, however, we hold that to authorize imposition of the death penalty when aggravators and mitigators weigh equally, as does the current version of section 16-11-103, violates fundamental requirements of certainty and reliability under the cruel and unusual punishments and due process clauses of the Colorado Constitution.” 814 P.2d at 846.
The third case relied on by Kleypas is Hulsey v. Sargent, 868 F. Supp. 1090 (E. D. Ark. 1993). At issue in Hulsey was the Arkansas statute mandating a death sentence if the mitigating circumstances did not outweigh the aggravating circumstances. 868 F. Supp. at 1092. The court noted the problem such an equation created:
“If a jury found the mitigating and aggravating circumstances in equipoise, neither one more probative than the other, or, could not fairly come to a conclusion about what balance existed between them, they would be obliged to impose the death sentence since die mitigating circumstances would not be found to outweigh the aggravating. The requirement that die aggravating circumstances justify the sentence of death, which could easily be (and was probably intended to be) construed as an independent inquiry (satisfied by a single finding of an aggravating circumstance) would not cure the presumption created by the equation.” 868 F. Supp. at 1101.
The court concluded: “Here, it is explicit in the statute that mitigating must outweigh aggravating circumstances and no saving instruction is found. Here too, the strictures of the Eighth and Fourteenth Amendments with their requirements of individualized sentencing and full consideration of evidence in mitigation appear to require relief.” 868 F. Supp. at 1103.
The State does not bother to respond or attempt to distinguish the cases cited by Kleypas. Instead, the State relies completely on Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990). In Walton, the United States Supreme Court considered the constitutionality of the Arizona statute which provided that the court “ 'shall impose a sentence of death if the court finds one or more of the aggravating circumstances enumerated . . . and that there are no mitigating circumstances sufficiently substantial to call for leniency.’ ” 497 U.S. at 644.
The State argues that the U.S. Supreme Court specifically addressed this issue in Walton and rejected Kleypas’ argument. The State’s argument is premised on its view that the Arizona statute “is functionally indistinguishable from the Kansas statute in this respect.” We disagree and find the two statutes distinguishable. The obvious distinction is the language used in each statute. The Arizona statute does not call for a weighing formula in which the mitigating circumstances must outweigh the aggravating circum stances, the very essence of the issue before this court. Such a weighing equation results in mandating a death sentence where the jury finds equipoise as to the mitigating and aggravating circumstances.
As previously noted, the Colorado Supreme Court in Young distinguished the language in the Arizona statute from the Colorado statute and found that the issue of equipoise was not raised or decided in Walton. 814 P.2d at 846. We agree.
The failure of the plurality in Walton to address equipoise was noted by Justice Blackmun in his dissent:
“The plurality does not attempt to explain why Arizona may require a capital sentence in a case where aggravating and mitigating circumstances are evenly balanced. Indeed, the plurality does not even acknowledge that this is the dis-positive question. Instead, it offers only a conclusoiy assertion: ‘So long as a State’s method of allocating the burdens of proof does not lessen the State’s burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency.’ [Citation omitted.]” 497 U.S. at 688 (Blackmun, J., dissenting).
Justice Blackmun, however, addressed the issue:
“If the mitigating and aggravating circumstances are in equipoise, the statute requires that the trial judge impose capital punishment. The assertion that a sentence of death may be imposed in such a case runs directly counter to the Eighth Amendment requirement that a capital sentence must rest upon a ‘determination that death is the appropriate punishment in a specific case.’ Woodson v. North Carolina, 428 U.S., at 305 (plurality opinion).
“The plurality takes a hard-line approach and makes little effort to ground its holding on our Eighth Amendment jurisprudence. In support of its position, the plurality cites only two very recent capital cases, Blystone v. Pennsylvania, 494 U.S., at 305 (1990) and Boyde v. California, 494 U.S. 370 (1990). Reliance even on diese precedents is misplaced. The statutes upheld in those cases provided that the death penalty would be imposed ‘only after a determination that the aggravating circumstances outweigh the mitigating circumstances present in the particular crime committed by the particular defendant, or that there are no such mitigating circumstances.’ Blystone, 494 U.S., at 305. In neither Boyde nor Blystone did the challenged statute require a capital sentence when aggravating and mitigating factors are evenly balanced. Those decisions simply do not speak to the issue posed by the Arizona statute: whether the State permissibly may place upon the capital defendant the burden of demonstrating that a sentence of death is not appropriate.” 497 U.S. at 687-88 (Blackmun, J., dissenting).
In Montana v. Smith, 261 Mont. 419, 863 P.2d 1000 (1993), the Montana Supreme Court considered the Montana statute which read:
“In determining whether to impose a sentence of death or imprisonment, the court shall take into account aggravating and mitigating circumstances . . . and shall impose a sentence of death if it finds one or more of the aggravating circumstances and finds that there are no mitigating circumstances sufficiently substantial to call for leniency.” Mont. Code Ann. § 46-18-305 (1977).
The Montana Supreme Court rejected the Young rationale on the basis that the Montana weighing equation was much different from that of Colorado. The court held Montana’s statute “requires imposition of the death penalty if the court finds one or more aggravating circumstances and no mitigating circumstances sufficiently substantial to call for leniency. Unlike the Colorado provision, it does not require the death sentence to be imposed if the aggravating and mitigating factors are of equal weight.” 261 Mont. at 438.
The difference between the language in K.S.A. 21-4624(e) and the Arizona statute is expressed in the amicus curiae Cornell Death Penalty Project brief as follows:
“On its face, the Arizona provision operates on a different logic than does section 21-4624(e). Unlike section 21-4624(e), the Arizona statute does not tell the sentencer to impose death if aggravating circumstances are not outweighed by mitigating circumstances. Instead, it requires death only if‘there are not mitigating circumstances sufficiently substantial to call for leniency.’ The key to the Arizona sentencing formula is the idea of ‘sufficiently substantial.’
“That language, unlike section 21-4624(e), does not direct the sentencer to impose death if it finds aggravating and mitigating circumstances are in equipoise. If a sentencer in Arizona thought aggravating and mitigating circumstances were equally balanced, he or she could reasonably conclude that there were mitigating circumstances ‘sufficiently substantial to call for leniency,’ or he or she could reach the opposite conclusion. The law leaves the sentencer free to decide either way. In contrast, a Kansas juror who reached the same conclusion about the relative balance between aggravation and mitigation would have only one option: to impose death. In fact, under the Arizona scheme a sentencer who thought that aggravating circumstances actually outweighed mitigating circumstances couldsiiH conclude that the available mitigating circumstances were ‘sufficiently substantial’ — i.e., that they crossed some critical threshold of substantiality — to ‘call for leniency.’ A Kansas juror clearly does not have that option.”
This court has addressed this issue in the context of K.S.A. 1999 Supp. 21-4635(c), the hard 40 sentence. In State v. Spain, 269 Kan. 54, 60, 4 P.3d 621 (2000), we held that statute was not unconstitutional. We made it clear that the death penalty cases are not controlling in hard 40 cases. Likewise, hard 40 cases are not controlling when the sentence is death. That distinction is reflected by the State not citing or relying on our decision in Spain. Spain is not controlling here because the death penalty is different from all other punishments:
“[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U.S. 280, 305, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976).
Justice Stevens wrote:
“In the 12 years since Furman v. Georgia, 408 U.S. 238 (1972), every Member of this Court has written or joined at least one opinion endorsing the proposition that because of its severity and irrevocability, the death penalty is qualitatively different from any other punishment, and hence must be accompanied by unique safeguards to ensure that it is a justified response to a given offense.” Spaziano v. Florida, 468 U.S. 447, 468, 82 L. Ed. 2d 340, 104 S. Ct. 3154 (1984) (Stevens, J., concurring in part and dissenting in part).
In Spain, we said:
“In addition, we reaffirm that death penalty cases are not controlling in hard 40 cases. The distinction between the two is obvious. The death penalty as it existed prior to the decision in Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972), was held to be unconstitutional. The unconstrained discretion in imposing the death penalty constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The states were required to provide ‘ “specific and detailed guidance" ’ and ‘ “make rationally reviewable the process for imposing a sentence of death.” ’ Godfrey v. Georgia, 446 U.S. 420, 428, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980) (quoting Proffitt v. Florida, 428 U.S. 242, 253, 49 L. Ed. 2d 913, 96 S. Ct. 2960 [1976], and Woodson v. North Carolina, 428 U.S. 280, 303, 49 L. Ed. 2d 944, 96 S. Ct. 2978 [1976], respectively). Not so with a hard 40 sentence. In State v. Bailey, 251 Kan. 156, 171, 834 P.2d 342 (1992), we said: ‘[T]he finality and severity of the imposition of the death penalty, the hurdles the prosecution must clear if the death penalty is to be imposed are higher than in any other area of criminal law.’ The United States Supreme Court, in Rummel v. Estelle, 445 U.S. 263, 272, 63 L. Ed. 2d 382, 100 S. Ct. 1133 (1980), stated: ‘Because a sentence of death differs in kind from any sentence of imprisonment, no matter how long, our decisions applying the prohibition of cruel and unusual punishments to capital cases are of limited assistance in deciding the constitutionality of the punishment meted out to Rummel.’ ” 269 Kan. at 59-60.
No issue is more difficult or divisive than determining to what extent a capital punishment is permitted under the Eighth and Fourteenth Amendments to the United States Constitution. We determined earlier in this opinion that the death penalty in and of itself does not constitute cruel and unusual punishment under the Eighth Amendment. The issue we grapple with here is whether the imposition of the death penalty under our statutory weighing formula constitutes cruel and unusual punishment under the Eighth Amendment. More specifically, is K.S.A. 21-4624(e) applied in an unconstitutional manner by mandating death if the aggravating and mitigating circumstances are in equipoise?
In Furman v. Georgia, 408 U.S. 238, 309-10, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972), the Supreme Court held the death penalty as imposed in Georgia to be cruel and unusual punishment in violation of the Eighth and 14th Amendments. The Supreme Court did so in a one paragraph, per curiam opinion. The rationale of the decision is to be found in the five separate opinions which follow the per curiam opinion. That poses some difficulty since none of the five separate opinions concurred in any of the other opinions. Four justices filed separate dissents.
The opinions of Justices White and Stewart are relied on in subsequent opinions of the Supreme Court. Both made it clear that the death penalty is not in itself cruel and unusual under the Eighth Amendment. Justice Stewart’s view was that the “the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.” 408 U.S. at 310 (Stewart, J., concurring). Justice White wrote: “[T]here is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” 408 U.S. at 313 (White, J., concurring).
Four years later, the Supreme Court approved the Georgia death penalty statute as amended in response to the Court’s decision in Furman. In Gregg v. Georgia, 428 U.S. 153, 207, 49 L. Ed. 2d 859, 96 S. Ct. 2909, reh. denied 429 U.S. 875 (1976), the Court found the amended death penalty statutes to be constitutional. That decision was announced by three justices: Stewart, Powell, and Stevens. The three justices focused on the procedure by which the defendant was given the death penalty and not the actual punishment. Justices White and Rehnquist and Chief Justice Burger concurred in the judgment by separate opinion, as did Justice Blackmun. The Georgia statute required that the jury must find beyond a reasonable doubt 1 of 10 statutory aggravating circumstances before it can impose a sentence of death.
“In addition, the jury is authorized to consider any other appropriate aggravating or mitigating circumstances. [Citation omitted.] The jury is not required to find any mitigating circumstance in order to make a recommendation of mercy that is binding on the trial court, [citation omitted], but it must find a statutory aggravating circumstance before recommending a sentence of death.” 428 U.S. at 197.
Stewart went on to write:
“No longer can a Georgia jury do as Furman’s jury did: reach a finding of the defendant’s guilt and then, without guidance or direction, decide whether he should live or die. Instead, the jury’s attention is directed to the specific circumstances of the crime: Was it committed in the course of another capital felony? Was it committed for money? Was it committed upon a peace officer or judicial officer? Was it committed in a particularly heinous way or in a manner that endangered the lives of many persons? In addition, the jury’s attention is focused on the characteristics of the person who committed the crime: Does he have a record of prior convictions for capital offenses? Are there any special facts about this defendant that mitigate against imposing capital punishment (e.g., his youth, the extent of his cooperation with the police, his emotional state at the time of the crime). As a result, while some jury discretion still exists, ‘the discretion to be exercised is controlled by clear and objective standards so as to produce nondiscriminatoiy application.’ Coley v. State, 231 Ga. 829, 834, 204 S.E.2d 612, 615 (1974.)” 428 U.S. at 197-98.
Following the Georgia decision, the Supreme Court invalidated the mandatory death penalty statutes passed in some states in re sponse to Furman. Woodson v. North Carolina, 428 U.S. at 303. The Supreme Court concluded that the death sentence process must include consideration of the “character and record of the individual offender.” 428 U.S. at 304. In Penry v. Lynaugh, 492 U.S. 302, 316, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989), the Court noted:
“Indeed, as Woodson v. North Carolina, 428 U.S. 280 (1976), made clear, ‘in capital cases the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.’ Id., at 304 (plurality opinion).”
The Court further stated:
“Our decisions subsequent to Jurek have reaffirmed that the Eighth Amendment mandates an individualized assessment of the appropriateness of the death penalty. In Lockett v. Ohio, 438 U.S. 586 (1978), a plurality of this Court held that the Eighth and Fourteenth Amendments require that the sentencer ‘not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’ ” 492 U.S. at 317.
“Underlying Lockett and Eddings is the principle that punishment should be directly related to the personal culpability of the criminal defendant. If the sentencer is to make an individualized assessment of the appropriateness of the death penalty, ‘evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.’ California v. Brown, 479 U.S. 538, 545 (1987) (O’Connor, J., concurring). Moreover, Eddings makes clear that it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence.” 492 U.S. at 319.
Justice O’Connor, concurring in Franklin v. Lynaugh, 487 U.S. 164, 184-85, 101 L. Ed. 2d 155, 108 S. Ct. 2320 (1988), wrote:
“[I]t is clear that a State may not constitutionally prevent the sentencing body from giving effect to evidence relevant to the defendant’s background or character or the circumstances of the offense that mitigates against the death penalty. Indeed, the right to have the sentencer consider and weigh relevant mitigating evidence would be meaningless unless the sentencer was also permitted to give effect to its consideration.”
In Penry, Justice O’Connor speaking for a majority of the Court wrote:
“But as we made clear in Gregg, so long as the class of murderers subject to capital punishment is narrowed, there is no constitutional infirmity in a procedure that allows a jury to recommend mercy based on the mitigating evidence introduced by a defendant. [428 U.S.] at 197-199, 203.
“ ‘In contrast to the carefully defined standards that must narrow a sentencer’s discretion to impose the death sentence, the Constitution limits a State’s ability to narrow a sentencer’s discretion to consider relevant evidence that might cause it to decline to impose the death sentence.’ McCleskey v. Kemp, 481 U.S. 279, 304 (1987) (emphasis in orginal). Indeed, it is precisely because the punishment should be directly related to the personal culpability of the defendant that the jury must be allowed to consider and give effect to mitigating evidence relevant to a defendant’s character or record or the circumstances of the offense. Rather than creating the risk of an unguided emotional response, full consideration of evidence that mitigates against the death penalty is essential if die jury is to give a ‘ “ ‘reasoned moral response to the defendant’s background, character, and crime.’ ” ’ Franklin, 487 U.S., at 184 (O’Connor, J., concurring in judgment) (quoting California v. Brown, 479 U.S., at 545 [O’Connor, J., concurring]). In order to ensure ‘reliability in the determination that death is the appropriate punishment in a specific case,’ Woodson, 428 U.S., at 305, the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background and character or the circumstances of the crime.” 492 U.S. at 327.
Penry argued that the jury was unable to express its “reasoned moral response” to his mitigation evidence of his mental retardation and childhood abuse in determining if death was an appropriate sentence. The Court agreed, stating:
“In this case, in the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of Penry’s mental retardation and abused background by declining to impose the death penalty, we conclude that the juiy was not provided with a vehicle for expressing its ‘reasoned moral response’ to that evidence in rendering its sentencing decision. Our reasoning in Lockett and Eddings thus compels a remand for resentencing so that we do not ‘risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.’ Lockett, 438 U.S., at 605; Eddings, 455 U.S., at 119 (O’Connor, J., concurring). “When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.’ Lockett, 438 U.S., at 605.’’ 492 U.S. at 328.
In Woodson, Justice Stewart speaking for the majority wrote:
“While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 U.S., at 100 (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
“[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” 428 U. S. at 304-05 (Brennan, J., concurring).
If we are to give more than lip service to the principles espoused by the Supreme Court, then the weighing equation in K.S.A. 21-4624 cannot be approved. The Eighth Amendment forbids unguided discretion in imposing a sentence of death. Under our statutes, the jury discretion is guided by requiring that it find the existence of one statutory aggravated circumstance. That narrows the class of those eligible for the death penalty. The Supreme Court has made it clear that the process cannot stop there. Of equal importance is the sentencer’s consideration of the mitigating circumstances. Here, the jury as the fact finder must be given discretion in considering and giving effect to the mitigating circumstances. As previously noted, the Georgia capital sentencing statutes, approved in Gregg, did not limit the jury’s consideration of the mitigating circumstances. Here, the weighing equation not only limits the jury’s consideration, it mandates death if the aggravating and mitigating circumstances are equal. As such, it denies what the Eighth Amendment requires: that the jury is to give effect to the mitigating circumstance that it finds exist.
It is important to note that on March 14, 1995, the attorney general analyzed the statute and recommended in the House Judiciary Committee of the Kansas Legislature that the statute be amended to require that aggravating circumstances outweigh mitigating circumstances, stating: “Now if they are equal, ‘tie’ goes to state. We’re proposing ‘tie’ goes to defense . . . .” Unfortunately, the legislature did not follow the attorney general’s recommendation.
As the New Jersey Supreme Court pointed out in Biegenwald, there is a similarity of the jury’s function in weighing the aggravating and mitigating circumstances to that of determining guilt or innocence of the defendant. The burden is the same. The process is much the same and the outcome as serious, if not more so. The penalty of death is not only unique in its severity, but it is irrevocable. The United States Supreme Court noted the similarity in Spaziano v. Florida, 468 U.S. at 458-59:
“This Court, of course, has recognized that a capital proceeding in many respects resembles a trial on the issue of guilt or innocence. See Bullington v. Missouri, 451 U.S. 430, 444 (1981). Because the ‘ “embarrassment, expense and ordeal” . . . faced by a defendant at the penalty phase of a . . . capital murder trial . . . are at least equivalent to that faced by any defendant at the guilt phase of a criminal trial/ the Court has concluded that the Double Jeopardy Clause bars the State from making repeated efforts to persuade a sentencer to impose the death penalty. Id., at 445, quoting Green v. United States, 355 U.S. 184, 187 (1957); Arizona v. Rumsey, 467 U.S. 203 (1984).”
The legislature cannot mandate a death sentence for any category of murder. The legislature is limited to defining who is eligible, within constitutional limits, to receive the death penalty. It is for the jury, within permissible guidelines, to determine who will live and who will die. The issue is not whether the penalty of death is per se cruel and unusual punishment. Furman did not hold that the death penalty was cruel and unusual punishment per se under the Eighth Amendment. Here the issue, as that before the Furman court, is whether the process used to select which defendant will receive the irrevocable penalty of death “comports with the basic concept of human dignity at the core of the [Eighth] Amendment.” Gregg, 428 U.S. at 183.
Is the weighing equation in K.S.A. 21-4624(e) a unique standard to ensure that the penalty of death is justified? Does it provide a higher hurdle for the prosecution to clear than any other area of criminal law? Does it allow the jury to express its “reasoned moral response” to the mitigating circumstances? We conclude it does not. Nor does it comport with the fundamental respect for hu inanity underlying the Eighth Amendment. Last, fundamental fairness requires that a “tie goes to the defendant” when life or death is at issue. We see no way that the weighing equation in K.S.A. 21-4624(e), which provides that in doubtful cases the jury must return a sentence of death, is permissible under the Eighth and Fourteenth Amendments. We conclude K.S.A. 21-4624(e) as applied in this case is unconstitutional.
Our decision does not require that we invalidate K.S.A. 21-4624 or the death penalty itself. We do not find K.S.A. 21-4624(e) to be unconstitutional on its face, but rather, we find that the weighing equation impermissibly mandates the death penalty when the jury finds that the mitigating and aggravating circumstances are in equipoise.
In State v. Motion Picture Entitled “The Bet,” 219 Kan. 64, 547 P.2d 760 (1976), the defendant challenged the constitutionality of the definition of obscene material contained in K.S.A. 21-4301(2) (a) and (3) (Weeks). In 1973, the United States Supreme Court in Miller v. California, 413 U.S. 15, 24, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973), revised the test for obscenity. The definition of obscene material in K.S.A. 21-4301 (Weeks) did not conform to the constitutional requirements of Miller. The district court, however, found the films to be obscene by construing the broader definition in our statute to conform to the requirement of the Miller decision. Simply stated, the district court read the Miller standards into K.S.A. 21-4301. This court affirmed the district court on appeal, stating:
“This court has on previous occasions seen fit to construe and limit criminal statutes in such a way as to uphold their constitutionality by reading judicial requirements into statutes which otherwise were overbroad.
“Construction of this sort, moreover, was invited by the United States Supreme Court in Miller in which the Chief Justice speaking for a majority said:
*We do not hold . . . that all States . . . must now enact new obscenity statutes. Other existing state statutes as construed heretofore or hereafter, may well be adequate. [Citation omitted]’ (413 U.S. 24, note 6, 37 L. Ed. 2d 430, 93 S. Ct. 2615.)
“The high court has itself adopted this course of judicial construction of statutes as noted in United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 37 L. Ed. 2d 500, 93 S. Ct. 2665, and in United States v. Thirty-seven Photographs, 402 U.S. 363, 28 L. Ed. 2d 822, 91 S. Ct. 1400, reh. den. 403 U.S. 924, 29 L. Ed. 2d 702, 91 S. Ct. 2221, with respect to federal statutes.
“In at least nine other states the courts have held that their obscenity statutes, though not couched in the language of Miller, should be judicially construed in a manner consistent with Miller and thereby evade constitutional challenge in the future. [Citations omitted.]
“We realize that to construe the statute to meet constitutional standards we may be subject to the accusation that we are invading the province of the legislature. However, after considering the manifest intention of the legislature when it passed K.S.A. 21-4310, etseq., and our past difficulties in this area of regulating obscenity we feel fully justified in construing and limiting the present statute to meet constitutional standards. Such was the original intent of the Kansas legislature.” 219 at 70-71.
This court then “authoritatively” construed K.S.A. 21-4301 (Weeks) to include the Miller test and held a conviction may be had under the statute.
In In re Adoption of Baby Boy L., 231 Kan. 199, 223, 643 P.2d 168 (1982), Justice Holmes, speaking for the court, said:
“In examining the constitutionality of any statute there are certain basic principles which must be adhered to:
“ We start with the proposition that the constitutionality of a statute is presumed; that all doubts must be resolved in favor of its validity, and before the statute may be stricken, it must clearly appear the statute violates the Constitution. It is the court’s duty to uphold the statute under attack, if possible, rather than defeat it. If there is any reasonable way a statute may be construed constitutionally permissible, that should be done.’ Board of Greenwood County Comm’rs v. Nadel, 228 Kan. 469, Syl. ¶ 1, 618 P.2d 778 (1980).
“ ‘A statute, apparently valid upon its face, may be unconstitutional in its application to a particular set of facts, circumstances or classifications.’ Flax v. Kansas Turnpike Authority, 226 Kan. 1, Syl. ¶ 6, 596 P.2d 446 (1979).
“The corollary of Flax, of course, is that a statute apparendy void on its face may be constitutional when limited and construed in such a way as to uphold its constitutionality by reading the necessary judicial requirements into the statute. This has often been done when it is clear that such an interpretation will carry out the intent of the legislature. State v. Motion Picture Entitled ‘The Bet’, 219 Kan. 64, 70, 547 P.2d 760 (1976); State v Gunzelman, 210 Kan. 481, 502 P.2d 705 (1972); State v. Hart, 200 Kan. 153, 434 P.2d 999 (1967).”
In State v. Durrant, 244 Kan. 522, 769 P.2d 1174 (1989), the district court ruled K.S.A. 79-5201 etseq. (Ensley) unconstitutional in violation of the Fifth Amendment to the United States Consti tution. The district court held K.S.A. 79-5206 (Ensley) did not grant absolute immunity and thus did not prohibit the use of the information in prosecuting for other crimes. In other words, as written, K.S.A. 79-5206 granted use immunity but not derivative-use immunity. This court, relying on In re Adoption of Baby Boy L. and State v. Motion Picture Entitled “The Bet,” reversed the district court:
“This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute. To accomplish this purpose the court may read the necessary judicial requirements into the statute. In re Adoption of Baby Boy L., 231 Kan. 199, Syl. ¶ 13, 643 P.2d 168 (1982); State v. Motion Picture Entitled “The Bet” 219 Kan. 64, 547 P.2d 760 (1976); State v. Gunzelman, 210 Kan. 481, 502 P.2d 705 (1972); State v. Hart, 200 Kan. 153, 434 P.2d 999 (1967). We think it is obvious, and we so hold, that the legislature, by its enactment of 79-5206 as a part of the act, intended to extend not only use immunity but also derivative-use immunity to any person complying with the act. As construed, the immunity granted by the act is at least coextensive with the privilege against self-incrimination provided by the Fifth Amendment of the United States Constitution, and the act as so construed is constitutional.” 244 Kan. at 534-35.
The legislative intent in passing the death penalty act is obvious. K.S.A. 21-4624 provides for a death sentencing scheme by which a sentence of death is imposed for certain offenses. By simply invalidating the weighing equation and construing K.S.A. 21-4624(e) to provide that if the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 21-4625 exists and, further, that such aggravating circumstance or circumstances outweigh any mitigating circumstance found to exist, the defendant shall be sentenced to death, the intent of the legislature is carried out in a constitutional manner. So construed, we hold that K.S.A. 21-4624 does not violate the Eighth Amendment prohibition against cruel and unusual punishment. Our holding requires that this case be remanded for the jury to reconsider imposition of the death penalty.
We set aside the death sentence for the reasons set out above and remand for resentencing in accordance with K.S.A. 21-4624 as construed herein.
Because we hold that the provisions of K.S.A. 21-4624 are constitutional as interpreted by this court, it becomes necessary to address Kleypas’ additional constitutional challenges regarding capital murder provisions of Kansas statutory law.
Issue 24. Constitutional and Evidentiary Challenge to the Avoid Arrest Aggravating Circumstance
Kleypas advances two arguments with regard to the Kansas statutory “avoid arrest” aggravating circumstance: (1) The evidence does not support the jury’s finding that he murdered C.W. in order to avoid or prevent a lawful arrest or prosecution after his attempt to rape her, and (2) the “avoid arrest” aggravating circumstance violates the United States Constitution as well as the Kansas Constitution because it fails to narrow the class of persons eligible for the death penalty.
K.S.A. 21-4624(e) requires that aggravating circumstances outlined in K.S.A. 21-4625 be proven beyond a reasonable doubt. K.S.A. 21-4625(5) identifies the following aggravating circumstance: “The defendant committed the crime in order to avoid or prevent a lawful arrest or prosecution.” The standard of review on appeal as to the sufficiency of evidence regarding an aggravating circumstance is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the existence of the aggravating circumstance beyond a reasonable doubt. See State v. Evans, 251 Kan. 132, 135-36, 834 P.2d 335 (1992).
A. The State’s Evidence and Argument
In its opening statement during the penalty phase, the State informed die jury that it would prove Kleypas murdered C.W. in order to avoid arrest and prosecution.
“I will ask you to consider the confession of the defendant and remember he says he was sitting on the bed, [C.W.] is tied to the chair, the defendant stated that [C.W.] knew him, knew him as the guy who lived in the big green house and the defendant knew that if he let [C.W.] live that she could tell the police. So the defendant made a choice and he made a choice to avoid arrest and prosecution.”
In its closing statement, the State argued:
“The State in this case has proven three aggravating circumstances beyond a reasonable doubt. One of these is that the defendant committed the crime in order to avoid lawful arrest or prosecution. And you remember the evidence on this. The defendant going to the house of [C.W.] undisguised, going to the home of the neighbor who was sure to and, in fact, did recognize him.
“Remember the defendant’s own words about being recognized. She knew me. I knew she knew me. She didn’t recognize me personally but she recognized who I was. She made a comment to me about living in the house I live in. She only lived two houses down from me. These were the defendant’s words about being recognized and he knew when he went there he would be recognized. He also knew that after he attempted to rape her that he got up and walked away he would be arrested and prosecuted.
“So he made a choice and he killed [C.W.] to avoid that. He sat there for several minutes as he told you when he made his choice. And his choice was to kill [C.W.] so that he would have a better chance of getting away. He started tying her up and then he told us he sat on the bed and thought about it. And he made that choice so that just a little bit longer he could prevent a lawful arrest and prosecution. And the evidence of this is clear not only by the defendant’s own actions and words and not only by what he did to [C.W.] that night but what he did afterwards. He loaded up his truck, taking evidence of the murder with him and he fled town. He took off, he ran and he killed [C.W.] so that he could avoid arrest. There is no other conclusion that can be reached from this evidence.”
Kleypas did not object to these comments or address the aggravators in his opening or closing arguments during the penalty phase.
Kleypas contends there are only two pieces of evidence offered by the State to support the avoid arrest aggravating factor: (1) The victim knew Kleypas and could identify him to police, and (2) Kleypas left the state after committing the crime. Kleypas, however, mischaracterizes the State’s evidence.
The State relied heavily on testimony of KBI Agent Williams which recalled Kleypas’ confession during the ride in the patrol car back to Kansas. In it, Kleypas related the following events which occurred on the night of the murder. Kleypas, once inside the house, forced C.W. to her bedroom at knife point. He forced her to undress and attempted to have intercourse with her. When he failed to get an erection, he penetrated her with his fingers. He allowed her to dress. C.W. asked him to leave. She said if he would leave she would give him a head start before she called the police. He said she recognized him as the man who lived in the green house down the street.
According to Agent Williams, Kleypas confessed that he tied C.W. to a chair and that she started to panic. Kleypas unplugged the phone. After he tied her, he sat on the bed for a period of time thinking about his next action. She got loose from her binding to the chair, and he tried to strangle her. He tried to suffocate her with the sock but was unsuccessful. Kleypas stated that he then stabbed her repeatedly in the chest.
B. Evidence that the Victim Could Identify Kleypas
Kleypas argues that the “simple statement that the victim knew him” provided in his confession "‘hardly constitutes such overwhelming proof of his motive for murder.” He also asserts that “the State’s evidence was no stronger than in the "average’ murder case — the victim could have given the police a description of her attacker.”
Kleypas cites Florida law for the proposition that the mere fact the victim knew and could identify the defendant, without more, is insufficient to prove the avoid arrest aggravator beyond a reasonable doubt. In Geralds v. Florida, 601 So. 2d 1157 (Fla. 1992), the defendant was a carpenter remodeling the victim’s house. He was convicted of capital murder after the victim was found beaten and stabbed and the house robbed. The Florida Supreme Court upheld the conviction but vacated and remanded the sentence based on the prosecutor’s improper introduction of Geralds’ extensive criminal history during the penalty phase. 601 So. 2d at 1161-62. For the benefit of the district court at resentencing, the Florida Supreme Court stated:
“Likewise, we agree with Geralds that the State has failed to prove the existence of the aggravating circumstance of witness elimination beyond a reasonable doubt. The trial court found as follows:
‘The evidence establishes that the defendant had worked around the victim’s home and was known by the victim, the victim’s spouse and her children. The evidence established that the defendant had spoken with the victim and her two children the week prior to the murder and at that time sought out information concerning the family’s time schedule and the fact' that the victim’s husband would be out of town on the date the crime was committed. The evidence is clear to establish that the victim could have identified the defendant if she had survived the beating she was subjected to and the stabbing that occurred during the course of the robbery and burglary.’
“We have repeatedly held that the avoiding arrest aggravating factor is not applicable unless the evidence proves that the only or dominant motive for the killing was to eliminate a witness. [Citations omitted.] The mere fact that the victim knew and could identify the defendant, without more, is insufficient to prove this aggravating factor beyond a reasonable doubt.” 601 So. 2d at 1164.
Other Florida cases have also recognized that the mere fact that the witness knew and could identify the victim, without more, is not sufficient to prove the “avoid arrest” aggravating factor. See Jackson v. Florida, 599 So. 2d 103, 109 (Fla. 1992); Bruno v. Florida, 574 So. 2d 76, 81-82 (Fla. 1991); Hansbrough v. Florida, 509 So. 2d 1081, 1086 (Fla. 1987).
In State v. Spain, 269 Kan. 54, 60, 4 P.3d 621 (2000), we considered the avoid arrest aggravator in the hard 40 context, specifically rejecting the notion espoused by the Florida cases cited by Kleypas that the avoid arrest aggravator applies only in those cases where witness elimination is the dominant or only motive for the murder. Instead, we held that the State must show that a motive— not the dominant or only motive — for the murder was to avoid prosecution. 263 Kan. at 719.
Here, the evidence at trial showed that C.W. did not see Kleypas for the first time on the night she was murdered. KBI Agent Williams testified that Kleypas said C.W. recognized Kleypas as the man who lived in the green house. She did not, as Kleypas suggests, merely observe him as he attacked her. C.W. had seen Kleypas before and recognized him as a man who lived in a specific house in her neighborhood. C.W. knew her attacker and would have been able to provide a solid identification of Kleypas in a subsequent prosecution. This constitutes substantial evidence that Kleypas murdered C.W. to avoid arrest or prosecution.
C. Evidence that Kleypas Fled the State
Kleypas argues that the State told the jury that it could rely on evidence of his flight from Crawford County as evidence that he killed C.W. in order to avoid arrest or prosecution. He argues that evidence he sought to avoid arrest after the murder may not be considered as an indicator of his motives at the time of the murder because to do so would unconstitutionally broaden the definition of the avoid arrest aggravator. Kleypas argues that if the avoid arrest aggravator is applied to situations where a defendant flees the scene of a crime, the aggravator would apply in virtually eveiy death penalty case because “[v]ery few capital defendants wait at the crime scene for the authorities to apprehend them.”
To pass constitutional scrutiny, an aggravating circumstance must channel the discretion of the sentencer with clear and objective standards which provide specific guidance and make possible a rational review of the process of sentencing a defendant to death. Lewis v. Jeffers, 497 U.S. 764, 774, 777-78, 111 L. Ed. 2d 606, 110 S. Ct. 3092 (1990). An aggravating circumstance must not apply to every defendant convicted of murder but only to a subclass of that larger group. Tuilaepa v. California, 512 U.S. 967, 972, 129 L. Ed. 2d 750, 114 S. Ct. 2630 (1994). If the sentencer could fairly conclude that an aggravating circumstance applies to every defendant convicted of murder, the circumstance is unconstitutionally broad and thus invalid. Arave v. Creech, 507 U.S. 463, 474, 123 L. Ed. 2d 188, 113 S. Ct. 1534 (1993).
Other courts have determined that the avoid arrest aggravator on its face is not unconstitutionally vague or overbroad. See, e.g., Toles v. Oklahoma, 947 P.2d 180, 192 (Okla. Crim. 1997), cert. denied 524 U.S. 958 (1998); Wike v. Florida, 698 So. 2d 817, 822 (Fla. 1997), cert. denied 522 U.S. 1058 (1998); Whitmore v. Lockhart, 834 F. Supp. 1105, 1118 (E.D. Ark. 1992).
Kleypas advances two cases in support of his assertion that the avoid arrest aggravator is unconstitutionally broad as applied in this case. First, in North Carolina v. Williams, 304 N.C. 394, 424-25, 284 S.E.2d 437, cert. denied 456 U.S. 932 (1981), the North Carolina court held that there was not sufficient evidence to support the avoid arrest aggravator based on the mere fact that defendant told his accomplice that he wanted to leave the scene of the murder at a slow rate of speed in order to avoid arousing suspicion. 304 N.C. at 425. The court concluded:
“This single statement by the defendant occurred after the killing and at that point it was extremely likely that the statement reflected defendant’s wish to avoid detection for the killing. However, such a statement cannot raise a reasonable inference as to his motivation before or at the time of the killing. It is a post-killing expression evidencing an after-the-fact desire not to be detected or apprehended. In our opinion, it does not raise a reasonable inference that at the time of the killing defendant killed for the purpose of avoiding lawful arrest.” 304 N.C. at 425.
In the second case, Kormondy v. Florida, 703 So. 2d 454 (Fla. 1997), the trial court admitted evidence that Kormondy, while in jail, said he would kill two other people, one of whom witnessed the murder committed by Kormondy. Kormondy argued on appeal that the evidence was prejudicial and not relevant to proving an aggravating circumstance. The State argued that the evidence was relevant to show that Kormondy committed the murder to avoid arrest. The Florida court disagreed, stating:
“In the circumstances attending this case, we cannot find that a statement allegedly made in jail (after the relevant criminal episode) as to a future intent to kill sheds any light on Kormondy’s intent at the time of the crime. . . . His sentiment about future killings seems to have arisen after capture. It is simply too prejudicial to allow such speculative evidence to prove Kormondy’s intent at the time of the shooting.” 703 So. 2d at 462-63.
Unlike Williams, 304 N.C. 394, and Kormondy, 703 So. 2d 454, the State in this case anchored its argument on the evidence that C.W. knew Kleypas and that Kleypas spent time after the attempted rape, in the presence of C.W., considering his options. While the State referenced Kleypas’ flight after the murder, it did so only in the last two sentences of its argument. The State’s argument was based on the evidence that C.W. knew Kleypas and that he spent time after the attempted rape deliberating this fact, considered his options, and stabbed C.W. to death.
Kleypas’ attack on the constitutionality of the statute as applied is nothing more than a rehash of his argument that the State misinformed the jury about the nature of the evidence available to prove the existence of the aggravating circumstance. This question will be addressed in our discussion of prosecutorial misconduct, and we will not further discuss it here.
After a review of all the evidence, viewed in the light most favorable to the prosecution, we determine that a rational factfinder could have found the existence of the aggravating circumstance beyond a reasonable doubt. Kleypas knew that C.W. recognized him as a neighbor who lived on her street. After he attempted to rape her and tied her to a chair, he paused to consider his next action. He unplugged the telephone. When she attempted to escape he killed her. Based on this evidence, a rational factfinder could have found beyond a reasonable doubt that Kleypas murdered C.W. in order to avoid arrest or prosecution.
Issue 25. Constitutional Challenge to the Definition of the Heinous, Atrocious, or Cruel Manner Aggravating Circumstance
Kleypas contends that the instruction defining the heinous, atrocious, or cruel manner aggravating circumstance as used in Kansas violates the Eighth and Fourteenth Amendments to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights because it is unconstitutionally vague and fails to narrow the class of persons eligible to receive the death penalty.
The Eighth and Fourteenth Amendments of the United States Constitution require that a capital sentencing scheme direct and limit the discretion of the sentence “ ‘so as to minimize the risk of wholly arbitrary and capricious action.’ ” Lewis v. Jeffers, 497 U.S. at 774. The scheme must “channel the sentencer’s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance,’ and that ‘make rationally reviewable the process for imposing a sentence of death.’ ” Godfrey v. Georgia, 446 U.S. 420, 428, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980).
Where a jury is the final sentencer, as it is in this case, it is essential that the jurors be properly instructed regarding all facets of the sentencing process; it is insufficient to instruct the jury in the bare terms of an aggravating circumstance that is unconstitutionally vague on its face. Walton v. Arizona, 497 U.S. 639, 653, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990). When the statutory language defining an aggravating circumstance is challenged as unconstitutionally vague, this court must first determine whether the statutory language defining the circumstance is too vague to provide any guidance to the sentence. If so, the court must consider whether the state court has applied a narrowing construction to define the vague terms in a constitutional manner. 497 U.S. at 654.
K.S.A. 21-4625(6) states as an aggravating circumstance that “the defendant committed the crime in an especially heinous, atrocious and cruel manner.” The jury instruction regarding this aggravating circumstance stated that the jury must find
“[tjhat the defendant committed the crime in an especially heinous, atrocious or cruel manner. The term ‘heinous’ means extremely wicked or shockingly evil; ‘atrocious’ means outrageously wicked and vile; and ‘cruel’ means pitiless or designed to inflict a high degree of pain, utter indifference to, or enjoyment of the sufferings of others.
“A crime is committed in an especially heinous, atrocious, or cruel manner where the perpetrator inflicts serious mental anguish or serious physical abuse before the victim’s death. Mental anguish includes a victim’s uncertainty as to his or her ultimate fate.”
This instruction was taken from PIK Crim. 3d 56.00-C.
The United States Supreme Court has found language similar to that used in the first paragraph in the instruction to be unconstitutionally vague. See Maynard v. Cartwright, 486 U.S. 356, 364, 100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988); Shell v. Mississippi, 498 U.S. 1, 112 L. Ed. 2d 1, 111 S. Ct. 313 (1990). In Maynard, the Court found that the phrase “especially heinous, atrocious, or cruel” does not give sufficient guidance because an ordinary person could honestly believe that every unjustified, intentional taking of fife is especially heinous. 486 U.S. at 364. In Shell, the Court found that the addition of the phrase “ ‘[T]he word heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile; and cruel means designed to inflict a high degree of pain with indifference to, or even enjoyment of the suffering of others’ ” failed to cure the constitutional defect. 498 U.S. at 1; 498 U.S. at 2 (Marshall, J., concurring).
This court recognized the problem with vagueness in connection with the first paragraph of our jury instruction in State v. Willis, 254 Kan. 119, 130-31, 864 P.2d 1198 (1993). In order to address this problem, we added the second paragraph to the instruction, adopting the language from that approved by the United States Supreme Court in Walton v. Arizona. Willis, 254 Kan. at 131.
In Walton, the Arizona Supreme Court had defined the phrase "especially cruel” in its “especially heinous, cruel or depraved” aggravating factor as follows: “ ‘A crime is committed in an especially cruel manner when the perpetrator inflicts mental anguish or physical abuse before the victim’s death’ and that ‘[m]ental anguish includes a victim’s uncertainty as to his ultimate fate.’ ” 497 U.S. at 654. The United States Supreme Court stated:
“Recognizing that the proper degree of definition of an aggravating factor of this nature is not susceptible of mathematical precision, we conclude that the definition given to the especially cruel’ provision by the Arizona Supreme Court is constitutionally sufficient because it give meaningful guidance to the sentencer.” 497 U.S. at 655.
Kleypas argues that this court’s adoption of the Walton language does not solve the vagueness problem because the court failed to adopt the five-factor test allegedly employed by Arizona courts to further define the aggravating factor. Kleypas contends that in Arizona once a crime satisfies die mental anguish or physical abuse requirement, the sentencing judge must then find the existence of one or more of the following factors: (1) the killer’s apparent relishing of the murder; (2) the infliction of gratuitous violence on the victim; (3) the needless mutilation of the victim; (4) the senselessness of the crime; and (5) the helplessness of the victim (citing Arizona v. Gretzler, 135 Ariz. 42, 51-53, 659 P.2d 1 [1983]).
Kleypas’ interpretation of Gretzler and of the Arizona sentencing scheme is incorrect. In Arizona, the three terms “cruel,” “heinous,” and “depraved” are phrased in the disjunctive, so either all or one could constitute an aggravating circumstance. Gretzler, 135 Ariz. at 51. In order to be committed in a cruel manner, the murder must have involved the infliction of physical or mental pain on the victim. 135 Ariz. at 50-51. This was the aggravating circumstance at issue in Walton. See 497 U.S. at 654. In order to be committed in a heinous or depraved manner, the murder must satisfy one or more of the five factors outlined above. Gretzler, 135 Ariz. at 51-53. Thus, the factors cited by Kleypas are not factors which further narrow a finding that the crime involved the infliction of physical or mental abuse but rather alternatives that allow the jury to find the aggravating factor.
Kansas, unlike Arizona, applies the language of the Arizona definition of cruel to the entirety of the phrase “especially heinous, atrocious or cruel.” Thus, in order to find that a murder is committed in an especially heinous, atrocious, or cruel manner, the jury, must find that the perpetrator inflicted mental anguish or physical abuse before the victim’s death. In that respect, the Kansas scheme is nearly identical to that used by Oklahoma post-Maynard, 486 U.S. 356. In Nuckols v. Oklahoma, 805 P.2d 672, 674-75 (Okla. Crim. 1991), the Oklahoma Court of Criminal Appeals addressed OUJI-CR No. 436, which is virtually identical to PIK Crim. 3d 56.00-C except that the second paragraph states: “The phrase ‘especially heinous, atrocious, or cruel’ is directed to those crimes where the death of the victim was preceded by torture of the victim or serious physical abuse.” In Nuckols the court found that this instruction contemplates a two-step analysis. First, the jury must find that the death was preceded by torture or serious physical abuse, and once that category had been constitutionally narrowed, the jury would then apply the definitions of “heinous,” “atrocious,” or “cruel” to determine if the defendant would receive the death penalty. 805 P.2d at 674. The court concluded that the instruction passed constitutional muster.
Kleypas argues that the second paragraph of the Kansas instruction does not narrow the class of death eligible defendants as does the second paragraph of the Oklahoma statute. Kleypas contends that instead, the second paragraph of the PIK Crim. 3d 56.00-C(6) which states that “[a] crime is committed in an especially heinous, atrocious, or cruel manner where the perpetrator inflicts serious mental anguish or serious physical abuse before the victim’s death” merely gives an example of tire type of conduct that would qualify as heinous, atrocious, or cruel rather than restricting the aggravator to this conduct. Kleypas contrasts this with the Oklahoma instruction which states that the phrase is “directed” to such crimes. See OUJI-CR No. 436. However, a review of the language of the jury instruction in this case leads to the conclusion tíiat the second paragraph is clearly intended to be a narrowing definition rather than an example, and we conclude that the narrow definition is neither confusing nor misleading.
Kleypas also argues that the second paragraph is vague because it does not instruct the juiy that Kleypas must have intended to cause the physical or mental harm, is not limited to those acts over and above those necessary to cause death, and does not inform the jury that the physical abuse cannot include acts performed after the victim loses consciousness. However, none of these elements are mandated by the Constitution. Instead, the crucial question is whether the definition adequately narrows the class of persons who are death eligible by providing a principled basis for doing so. Arave v. Creech, 507 U.S. at 474.
The Kansas definition of “heinous, atrocious or cruel” is similar to the Arizona definition of “cruel” which was explicitly held to be sufficient under the Eighth and Fourteenth Amendments. Walton, 497 U.S. at 655. We conclude that the Kansas definition of “heinous, atrocious or cruel” narrows the class of persons who are death eligible defendants in a manner which complies with the requirements of the Eighth and Fourteenth Amendments to the United States Constitution.
Issue 26. Proportionality of Sentence
Kleypas argues that our state constitution, our death penalty statute, and Kansas case law require this court to conduct a proportionality analysis of his sentence. This analysis will, according to Kleypas, require this court to set his sentence aside when it is compared with other sentences in Kansas for similar crimes. We do not address the merits of his claim based upon our conclusion that neither the state nor federal Constitution require this court to engage in a proportionality analysis of his sentence. Further, nothing in our state law requires such a review.
Traditionally, “proportionality” has been used to compare the gravity of the offense against the severity of the penalty, to compare a sentence imposed to other sentences for similar crimes, and to evaluate sentencing practices in other jurisdictions. Pulley v. Harris, 465 U.S. 37, 43, 79 L. Ed. 2d 29, 104 S. Ct. 871 (1984). The federal Constitution does not require that this court or any other Kansas court compare a defendant’s sentence with other sentences imposed in this or any other state for similar crimes. 465 U.S. at 43-44.
Kleypas, however, argues that the following language in the Kansas Constitution compels such a review:
“All persons shall be bailable by sufficient sureties except for capital offenses, where proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.” Kan. Const. Bill of Rights, § 9.
Kleypas emphasizes the difference in language between the Kansas and federal Constitutions. He places great weight upon the disjunctive “or” between “cruel” and “unusual.” He argues that an “unusual” sentence implies a disproportionate sentence. Thus, according to Kleypas, § 9 of the Kansas Constitution Bill of Rights requires this court to conduct a proportionality review in order to determine whether his sentence is “unusual” as compared to those imposed in other cases.
In a similar vein, Kleypas turns to the language of K.S.A. 21-4627(c)(1): “With regard to the sentence, the court shall determine . . . [wjhether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor.” Kleypas focuses on the phrase “or any other arbitrary factor,” claiming that the language alludes to a proportionality review. In support of his contention, Kleypas cites District Attorney for the Suffolk District v. Watson, 381 Mass. 648, 411 N.E.2d 1274 (1980). In Watson, the Massachusetts capital sentencing scheme at issue required in part that the appellate court review a sentence of death to determine whether “ "the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor ” and also required the appellate court to perform a proportionality review — to include in its decision “ ‘a reference to similar cases which it took into consideration’ ” extracted from records of other death penalty cases accumulated by the executive secretary to the justices of the state’s high court. 381 Mass. at 654.
Watson held the Massachusetts death penalty scheme to be cruel or unusual punishment as defined by the state bill of rights because it offended contemporary standards of decency and was, as a his torical matter, arbitrarily inflicted. 381 Mass, at 660-61, 665. Based on its decision, the court in Watson did not consider the question of whether the statutory scheme required proportionality review. The Massachusetts statute specifically required the court to compare and reference sentences in similar cases and included a mechanism for collection of sentencing information for use by the court. The Kansas statutory scheme has no such provisions. Thus, Watson is of little value to Kleypas’ argument.
Finally, Kleypas argues that Kansas case law suggests this court has been willing to conduct a proportionality review in criminal cases, absent statutory mandate, when the issue is raised on appeal from a sentence. In State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), Freeman was convicted of second-degree murder in the death of her abusive husband. She received the minimum sentence but was denied probation pursuant to statute. Freeman attacked the operation of the statute as cruel and unusual punishment. 223 Kan. at 363.
This court set forth three criteria for evaluating whether the length of a sentence offends the constitutional prohibition against “cruel punishment.”
“(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
"(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” (Emphasis added.) 223 Kan. at 367.
While relevant, Freeman fails for several reasons to support Kleypas’ argument for proportionality review. First, the Freeman factors are designed to test whether a sentence constitutes cruel or unusual punishment in violation of § 9 of the Kansas Constitution Bill of Rights. They are clearly not designed as a mechanism for proportionality review. Second, Freeman tested the length— not the nature — of the sentence imposed. Third, the second Free man factor requires comparison of the punishment with punishments imposed in this state for more serious crimes, not the same or similar crimes, and not the actual punishments imposed on a case-by-case basis but the punishments set forth by statute. Indeed, Freemans application of this second factor consisted of considering whether in Kansas a crime of greater severity level than Freeman’s carried a less severe punishment. 223 Kan. at 368.
Kleypas points out that this court recently applied Freeman in State v. Tyler, 251 Kan. 616, 840 P.2d 413 (1992). However, in Tyler we pointed out that the Eighth Amendment to the federal Constitution does not carry a proportionality guarantee. We considered the Freeman factors in evaluating Tyler’s claim under § 9 of the Kansas Constitution Bill of Rights, and stated:
“After a review of the record and considering the nature of Tyler’s offenses we find his sentence is not grossly disproportionate to his crimes in violation of § 9 of the Kansas Constitution Bill of Rights. The sentence imposed is within the limits proscribed by law and we find it is not a product of partiality or prejudice.” 251 Kan. at 647.
Thus, Tyler limits the application of Freeman and provides little if any support for Kleypas. Tyler involved the issue of proportionality only in the context of whether Tyler’s sentence was proportionate to his crimes. There was no comparison of Tyler’s sentence to those of others convicted of the same or a similar crime. Further, Tyler complained of the length, not the nature, of his sentence.
Finally, this court severely limited the application of the Freeman factors in State v. Scott, 265 Kan. 1, 961 P.2d 667 (1998). Scott claimed the public access provisions of the Kansas Sex Offender Registration Act constituted cruel and unusual punishment. 265 Kan. at 2. The Court of Appeals applied the Freeman factors and held the Act violated the state constitution. On petition for review, this court considered the claim in the context of the federal and state Constitutions, noting that it had the right to interpret the Kansas Constitution differently from the federal Constitution but that it has not traditionally done so. 265 Kan. at 5. We observed in Scott that the proportionality test incorporated in the second Freeman factor had since been discredited by the United States Supreme Court, limiting application of the Freeman test to instances where the length of a sentence was challenged. 265 Kan. at 8. We stated:
“While there may still be instances where the Freeman test should be applied, we will not apply it precisely here where the method of punishment, rather than the length of a sentence, is challenged as cruel or unusual. Neither this court nor die [United States] Supreme Court has applied such test outside of die length of sentence context. [Citation omitted.] We may look to some of die Freeman factors in our analysis, but our basic question is whether die public access provisions of the KSORA render punishment so barbarous and contrary to human dignity that it shocks our conscience.” 265 Kan. at 9.
Kleypas also points out that the Freeman test has been used by this court in State v. McCloud, 257 Kan. 1, 5-6, 891 P.2d 324, cert. denied 516 U.S. 837 (1995) (length of sentence which was within statutory limits, not cruel or unusual); and State v. McDaniel & Owens, 228 Kan. 172, 185, 612 P.2d 1231 (1980) (Freeman test upheld for state constitutional analysis; sentences held not excessive or disproportionate); and a form of it used in State v. Strauch, 239 Kan. 203, 220, 718 P.2d 613 (1986) (criteria to consider when determining whether punishment is disproportionate to crime are “excessiveness, disproportionality, lack of necessity, unacceptability to society and arbitrariness of infliction”). He also contends that this court engaged in a proportionality review of the sentences of codefendants in State v. Bailey, 251 Kan. 527, 834 P.2d 1353 (1992).
All of the above cases dealt with complaints regarding the length, not the nature, of the sentences. Scott holds that the Freeman factors are to be applied only in evaluating the length of a sentence. Even so, the Freeman factors do not suggest a comparison of Kleypas’ sentence with those imposed on other defendants in this state convicted of the same or similar crimes. Kansas case law simply does not mandate proportionality review as requested by Kleypas.
We hold that neither the Kansas Constitution, the Kansas death penalty statutes, nor Kansas case law requires that a defendant’s sentence be subjected to a proportionality review which compares the defendant’s sentence with those imposed on other Kansas defendants for the same or similar crimes.
Issue 27. Constitutionality of Upward Departure for Conviction of Aggravated Burglary
Kleypas next argues that the trial court erred in imposing an upward durational departure sentence for his conviction of aggravated burglary. The trial court imposed an upward durational departure sentence of 68 months rather than the presumptive sentence for aggravated burglary of 31 to 34 months indicated by Kleypas’ criminal history. This departure was based on (1) the excessive brutality of the crime and (2) the obsessive pursuit and/or stalking of the victim.
Based on the United States Supreme Court opinion in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and our opinion in State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), it is clear that Kleypas’ departure sentence for aggravated burglary must be vacated and the matter remanded for re-sentencing.
Issue 28. Instruction on Mercy
Kleypas argues that his constitutional rights were violated by the trial court’s failure to properly instruct the jury on the exercise of mercy. The trial court submitted Instruction No. 13 to the jury during the sentencing phase as follows:
“Mitigating circumstances are those which in fairness may be considered as extenuating or reducing the degree of moral culpability or blame or which justified a sentence of less than death, although it does not justify or excuse the offense. The determination of what are mitigating circumstances is for you as jurors to resolve under the facts and circumstances of this case.
“The appropriateness of the exercise of mercy can itself be a mitigatingfactor you may consider in determining whether the State has proved beyond a reasonable doubt that the death penalty is warranted.” (Emphasis added.)
The instruction also lists 31 mitigating factors put forth by Kleypas for the jury’s consideration as well as the general statement that any other mitigators may be considered. The language precisely tracks that contained in PIK Crim. 3d 56.00-D.
During closing, Kleypas’ attorney explained to the jury at length the function and availability of mercy during the sentencing phase:
“Mitigating circumstances are those facts for you which in fairness and mercy and that is the law, the law of this land in fairness and mercy make you believe that this man should not be killed, that he should be in prison. Look at instruction number 13. Mitigating circumstances are those which in fairness may be considered as extenuating or reducing the degree of moral culpability, that is part of it, or blame or which justify a sentence of less than death, which justified a sentence of less than death although it does not justify or excuse the offense.
“. . . It is something for you to consider in your heart in deciding whether to exercise fairness and mercy in this case and, in fact, you get a specific statement of the law on down in that instruction 13. The appropriateness of the exercise of mercy, mercy can itself be a mitigating factor you may consider in deciding whether this man seated over here should be killed or in prison. That is what the law says, fairness and mercy. ... I looked up the word mercy in the dictionary and there is other places where the word mercy appears. But in the dictionary one of the definitions is compassion or forbearance shown to an offender.
“You know what another actual definition B in Webster’s dictionary is imprisonment rather than death imposed as a penalty for murder. Compassion or forbearance for an offender. That is what the law says. The law says that is a valid mitigator. If you decide that your heart telk you to exercise mercy, compassion or forbearance, fairness, then that is right. If you believe that that is a reason for you not to kill Gary Kleypas, not to vote for the execution of Gary Kleypas, then you have found that a mitigator outweighs the aggravators.” (Emphasis added.)
If the challenged instruction properly and fairly states the law as applied to the facts in the case, and if the jury could not reasonably have been misled by it, the instruction does not constitute reversible error. State v. Alexander, 268 Kan. 610, 613, 1 P.3d 875 (2000).
“The use of PIK instructions is not mandatory but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction, or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed. [Citation omitted.].” State v. Franklin, 264 Kan. 496, 505, 958 P.2d 611 (1998).
Kleypas argues that while the instruction introduces the concept of exercising mercy to the jury, it does so in a legally insufficient manner. Kleypas argues that mercy, if it is to be exercised, must be exercised only after the jury has weighed aggravating and mit igating circumstances and determined that a sentence of death is warranted. According to Kleypas, only after the jury has decided that Kleypas should be put to death can it truly exercise mercy and instead impose a nondeath sentence, thus mercy itself should not be characterized as a mitigator.
Kleypas’ arguments are unfocused. He supports them by citing cases upholding the right to trial by jury under the state constitution, treatises expounding upon the common-law tradition of the exercise of mercy by juries, and out-of-state cases purporting to recognize “the fallibility of legal rules designed to guide the jury’s discretion in deciding a capital defendant’s punishment.” The cases cited stand for no such thing and are not helpful to Kleypas’ argument.
As noted above, the United States Supreme Court has held that the Eighth Amendment requires two things of a death sentence: (1) The sentencer must not have unbridled discretion in determining the fate of the defendant, and (2) the defendant must be allowed to introduce any relevant mitigating evidence of his character or record or circumstances of the offense. California v. Brown, 479 U.S. 538, 541, 93 L. Ed. 2d 934, 107 S. Ct. 837 (1987). A mercy instruction per se is simply not required as part of this equation by federal or state law, nor is a specific type of mercy instruction.
The trial court provided the PIK instruction which incorporated the concept of mercy into the jury’s consideration of mitigating factors. Kleypas fails to show how the instruction was not adequate to inform the juiy of its option to exercise mercy or how the trial court otherwise failed to permit the jury to exercise mercy. We conclude that Instruction No. 13 properly and fairly stated the law as applied to the facts and that the jury could not have been misled by the instruction given.
Issue 29. Standard for Admission of Evidence During the Penalty Phase
Kleypas argues that the standard for admission of evidence during the sentencing phase set forth in K.S.A. 21-4624(c) violates the heightened reliability requirements for capital sentencing as guar anteed by various provisions of the state and federal Constitutions. We reject this argument and find that the standard for admission satisfies the Eighth Amendment.
K.S.A. 21-4624(c) states:
“In the sentencing proceeding, evidence may be presented concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments thereto and any mitigating circumstances. Any such evidence which the court deems to have probative value may be received regardless of its admissibility under the rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. Only such evidence of aggravating circumstances as the state made known to the defendant prior to the sentencing proceeding shall be admissible, and no evidence secured in violation of the constitution of the United States or of the state of Kansas shall be admissible. No testimony by the defendant at the sentencing proceeding shall be admissible against the defendant at any subsequent criminal proceeding. At the conclusion of the evidentiary presentation, the court shall allow the parties a reasonable period of time in which to present oral argument.”
With regard to this standard, Kleypas raises two arguments: (1) Relaxation of the rules of evidence at the penalty phase of a capital trial may apply only to evidence offered in support of mitigating, not aggravating, circumstances; and (2) the absence of a requirement that the court weigh the probative value of the evidence sought to be admitted against its prejudicial effect is a fatal flaw which renders the statute unconstitutional. Kleypas relies heavily on a pair of related cases to support his arguments: Washington v. Bartholomew (Bartholomew I), 98 Wash. 2d 173, 654 P.2d 1170 (1982); Washington v. Bartholomew (Bartholomew II), 101 Wash. 2d 631, 683 P.2d 1079 (1984).
In Bartholomew I, the Washington Supreme Court considered the constitutionality of portions of that state’s death penalty scheme which allowed the jury to consider among other things, the evidence of prior criminal conduct regardless of whether the conduct resulted in a charge or conviction and any relevant factors in determining whether there was sufficient mitigating circumstances to merit sparing the life of the capital defendant. In addition, the Washington statute included a provision which required the court at sentencing to admit any relevant probative evidence regardless of its admissibility under the rules of evidence. 98 Wash. 2d at 198-99.
The Washington court set forth a lengthy analysis of Eighth Amendment capital punishment jurisprudence. It noted that the federal Constitution requires two things of a death penalty scheme: (1) It must guide the discretion of the jury, rendering the death sentence rationally renewable, and (2) it must allow particularized consideration of the defendant’s character and record. Of these two, the court further narrowed its focus to the first requirement of channeling the discretion of the jury. 98 Wash. 2d at 192-93.
On the issue of channeling, the Washington Supreme Court looked to United States Supreme Court precedent and distilled from it the conclusion that the Constitution requires the jury to consider any evidence supporting mitigation. The Washington Supreme Court admitted the Supreme Court had not passed on the question of whether the same was true of evidence supporting aggravation. 98 Wash. 2d at 194-95.
The court quoted Gregg v. Georgia, 428 U.S. 153, 203-04, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976), on the matter of the breadth of evidence admissible during the penalty phase of a capital trial:
“ “We think the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing and to approve open and far-ranging argument. So long as the evidence introduced and the arguments made at die presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions.’ ” 98 Wash. 2d at 193.
The court also considered Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978), which forbade limitation of the jury’s consideration of any aspect of the defendant’s character or record or any aspect of the offense as a mitigating circumstance; Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982), which forbade any refusal to consider relevant mitigating circumstances; and Green v. Georgia, 442 U.S. 95, 60 L. Ed. 2d 738, 99 S. Ct. 2150 (1979), which forbade exclusion of mitigating evidence on the basis of state hearsay rules. 98 Wash. 2d at 194. The court summarized:
“While such liberal reception of mitigating information is mandated by Lockett v. Ohio, et al., the Court has not yet considered specifically whether the same prin ciples apply to aggravating factors. The statements in Gregg v. Georgia quoted above are apparently broad enough to apply equally to aggravating and mitigating information. Nevertheless, the reasoning in Lockett is applicable only to mitigating information. Furthermore, Gregg contains one significant limitation on its sweeping language; the information before the sentence must not ‘prejudice’ the defendant. [Citation omitted.]” 98 Wash. 2d at 194-95.
The Washington Supreme Court seized on the notion of “prejudice,” stating:
“At the very least, the Court’s recognition that defendant may be prejudiced by the reception of information at his sentencing suggests that different criteria apply to aggravating factors than apply to mitigating factors.” 98 Wash. 2d at 195.
In Bartholomew I, based on the above analysis, the Washington Supreme Court reversed the sentence of death, concluding that: (1) the provision authorizing admission of evidence of a defendant’s previous criminal activity other than convictions should be stricken, (2) the liberal statutory authority to receive “any relevant evidence” must be limited to any relevant mitigating evidence, (3) consideration of “any relevant factors” should be limited to any relevant mitigating factors, and (4) the State may not introduce evidence of nonstatutory aggravators (other than criminal convictions) except for matters in rebuttal of mitigating evidence. 98 Wash. 2d at 198.
The United States Supreme Court granted certiorari, vacated the judgment in Bartholomew I, and remanded for reconsideration in light of Zant v. Stephens, 462 U.S. 862, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983). Washington v. Bartholomew, 463 U.S. 1203, 77 L. Ed. 2d 1383, 103 S. Ct. 3530 (1983).
The Washington Supreme Court on remand in Bartholomew II did not change its decision. It characterized Thant as follows:
“The question before the United States Supreme Court was whether the invalidation of one of the multiple statutory aggravating circumstances found by a jury in imposing the death penalty requires that the sentence must be invalidated under the Eighth Amendment.
“The Court in Zant v. Stephens went on to indicate that a jury’s consideration of nonstatutory aggravating factors will not render a death sentence unconstitutional:
‘[Sjtatutory aggravating circumstances play a constitutionally necessary function .... But the Constitution does not require the jury to ignore other possible [nonstatutory] aggravating factors in the process of selecting, from among that class, tifióse defendants who will actually be sentenced to death.’
“In a limited way, Zarvt v. Stephens answers the question as to limits the constitution places on the prosecution’s presentation of nonstatutory aggravating factors at the sentencing phase of a capital case. According to the Supreme Court, the sentencing jury may consider nonstatutory aggravating factors. However, the court in Zant v. Stephens does not say that nonstatutory aggravating factors should have the same liberal reception as mitigating information proffered by the defendant.” 101 Wash. 2d at 635-36.
The Washington Supreme Court pointed out that Zant quoted Gregg for the proposition that “ ‘[s]o long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions’ ” on admissibility of evidence. 101 Wash. 2d at 637. This prompted the Washington Supreme Court to declare that the United States Supreme Court once again “acknowledged this ‘prejudice’ standard.” 101 Wash. 2d at 637. Lamenting, the Washington Supreme Court stated:
“Likewise, Zant v. Stephens and other recent Supreme Court decisions, have failed to clarify this concept. Nevertheless, faced with a death penalty statute, provisions of which we find offensive under the Eighth Amendment, Fourteenth Amendment, and our state constitution, we cannot wait for the Supreme Court to clarify this concept. It is our opinion that this prejudice’ concept subjects the prosecution to a more stringent standard than that of the defendant at the sentencing phase of a capital case.” 101 Wash. 2d at 637.
The court hastened to add that if its federal constitutional analysis was in error, the same conclusion was required under the Washington State Constitution. 101 Wash. 2d at 639. The court affirmed its prior decision in its entirety. 101 Wash. 2d at 648.
Kleypas draws from these cases two arguments: (1) K.S.A. 21-4624(c) is constitutionally infirm because it allows admission of probative evidence of aggravating circumstances without consideration for the rules of evidence, and (2) Kansas statute is invalid because it does not incorporate the Gregg prejudice standard. However, we do not find Bartholomew I and Bartholomew II persuasive.
In Romano v. Oklahoma, 512 U.S. 1, 129 L. Ed. 2d 1, 114 S. Ct. 2004 (1994), Romano was tried separately for two murders. His first trial resulted in conviction and a death sentence. During sentencing at his second trial, the prosecution introduced evidence of his first murder conviction and death sentence. Romano was sentenced to death in the second trial. On appeal, he argued that admission of evidence of his first sentence of death undermined the jury’s understanding of its responsibility for determining the appropriateness of the death penalty in the second trial. He also pointed out that his first conviction was later overturned on appeal.
The United States Supreme Court framed the issue before it as follows:
“ ‘Does admission of evidence that a capital defendant already has been sentenced to death in another case impermissibly undermine the sentencing jury’s sense of responsibility for determining the appropriateness of the defendant’s death, in violation of the Eighth and Fourteenth Amendments?’ ” 512 U.S. at 6.
The Court reviewed its traditional Eighth Amendment framework in capital cases: (1) States must establish a threshold below which the death penalty cannot be imposed, that is, states must provide a mechanism which genuinely narrows the class of persons eligible for the death penalty while minimizing arbitrary and capricious sentencing decisions; and (2) states must ensure that sentences are based on the individual character and record of defendant, as well as the circumstances of the crime, without limiting consideration of any mitigating information. 512 U.S. at 7. The Court stated:
“Within these constitutional limits, ‘the States enjoy their traditional latitude to prescribe the method by which those who commit murder shall be punished.’ [Citation omitted.] This latitude extends to evidentiary rules at sentencing proceedings.
“Petitioner’s argument, pared down, seems to be a request that we fashion general evidentiary rules, under the guise of interpreting the Eighth Amendment, which would govern the admissibility of evidence at capital sentencing proceedings. We have not done so in the past, however, and we will not do so today. The Eighth Amendment does not establish a federal code of evidence to supersede state evidentiary rules in capital sentencing proceedings. [Citation omitted.]” (Emphasis added.) 512 U.S. at 7, 11-12.
Kleypas focuses much attention, as do the cases he cites, on the notion of “prejudice” as briefly mentioned in Gregg. Putting the quotation in context is helpful In Gregg, the United States Supreme Court considered the constitutionality of the Georgia death penalty scheme. One of Gregg’s minor arguments touched on an evidentiary issue.
“The petitioner objects, finally, to the wide scope of evidence and argument allowed at presentence hearings. We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing and to approve open and far-ranging argument. [Citation omitted.] So long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision. [Citation omitted.]” (Emphasis added.) 428 U.S. at 203-04.
Kleypas conveniently omits the last sentence of the quotation which is important to the message conveyed by the Supreme Court. Another twist that neither party mentions, however, is that the Georgia statute in effect at the time provided for a sentencing hearing “subject to the laws of evidence.” Ga. Code Annot. § 27-2534 (1971) (repealed and superseded by the Act of 1974, now appearing at Ga. Code Annot. § 27-2503). See Brown v. Georgia, 235 Ga. 644, 648, 220 S.E.2d 922 (1975). Thus, the Supreme Court’s comment that the jury should have as much information as possible was made in the context of a statute which subjected the sentencing hearing to the Georgia laws of evidence.
Romano is more helpful to the analysis and makes two important statements about evidentiary concerns against the backdrop of the Eighth Amendment. First, the State has great latitude in fashioning evidentiary rules for capital sentencing proceedings. Second, the Eighth Amendment does not provide a basis for inventing, at the federal level, evidentiary rules to restrict admissibility of evidence at a state capital sentencing proceeding.
K.S.A. 21-4624(c) requires evidence presented at sentencing to be relevant to the question of sentence and have probative value. Evidence secured in violation of the Constitution is not admissible. Further, the State may only introduce evidence of aggravating cir cumstances which were disclosed to the defendant prior to sentencing, and the defendant is guaranteed a fair opportunity to rebut hearsay statements. The statute ensures that the sentencer have as much information as possible while affording the defendant basic protections. Contrary to Kleypas’ contention, we conclude that further restriction on the reception of evidence by applying the rules of evidence to aggravating but not mitigating evidence in the interest of preventing “prejudice” to the defendant is neither advisable nor required by the Eighth Amendment.
Kleypas also complains of the statute’s failure to shield the jury from hearsay evidence in the form of a correctional adjustment checklist from the Missouri Department of Corrections. Kleypas argues that introduction of this evidence suggested to the jury that he was a racist and sexually preyed on weaker inmates in prison. He contends that admission of the checklist was improper because the information it contained was unreliable and it violated his right to confrontation.
These arguments are explored in greater detail in our discussion involving prosecutorial misconduct and will not be addressed here. Suffice it to say that the evidence Kleypas complains of was introduced as rebuttal to evidence he himself offered in mitigation of punishment. Even the court in Bartholomew I and II acknowledged that the prosecution is entitled to produce nonstatutory aggravating evidence when it is used to rebut matters raised by the defendant in mitigation. 98 Wash. 2d at 197-98; 101 Wash. 2d at 642-43. Kleypas’ arguments concerning the admissibility of evidence during the penalty phase of a capital murder trial fail.
Issue 30. Effect of A Guilty Plea Under K.S.A. 21-4624
Kleypas argues that K.S.A. 21-4624 does not allow a sentence of death to be imposed upon a plea of guilty to a capital crime, while allowing a sentence of death to be imposed upon conviction after a trial, thus encouraging a guilty plea and chilling his exercise of state and federal constitutional rights not to incriminate himself by pleading guilty.
Kleypas did not plead guilty to the crimes for which he was convicted. Clearly, the statute did not operate to chill his consti tutional rights. Kleypas’ argument becomes instead that he has been punished for exercising these rights by exposure to a death sentence which he ultimately received.
Kleypas admits that he failed to raise this issue in the trial court. However, K.S.A. 21-4627(b) authorizes this court, when considering a death penalty appeal, to “notice unassigned errors appearing of record if the ends of justice would be served thereby.” Because this issue is likely to arise in future cases, we will consider it here.
Kleypas bases his argument that K.S.A. 21-4624 is unconstitutional on the seminal case of United States v. Jackson, 390 U.S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209 (1968). There, the United States Supreme Court invalidated the death penalty provisions of the Federal Kidnaping Act because only a jury could impose a death sentence. The Act allowed those who pled guilty or waived a jury trial to escape with their lives.
The Federal Kidnaping Act provided in pertinent part:
“ “Whoever knowingly transports in interstate . . . commerce, any person who has been unlawfully . . . kidnaped . . . and held for ransom . . . or otherwise . . . shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or life, if the death penalty is not imposed.’ ” 18 U.S.C. § 1201(a), as quoted at 390 U.S. at 570-71.
Jackson interpreted the statute as follows: “This statute thus creates an offense punishable by death “if the verdict of the jury shall so recommend.’ The statute sets forth no procedure for imposing the death penalty upon a defendant who waives the right to jury trial or upon one who pleads guilty.” 390 U.S. at 571.
The Court concluded:
“Under the Federal Kidnaping Act, therefore, the defendant who abandons the right to contest his guilt before a juxy is assured that he cannot be executed; the defendant ingenuous enough to seek a jury acquittal stands forewarned that, if the jury finds him guilty and does not wish to spare his life, he will die. Our problem is to decide whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury. The inevitable effect of any such provision is, of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial.” 390 U.S. at 581.
The Court determined that the death penalty provision “needlessly penalizes the assertion of a constitutional right” and was thus invalid. 390 U.S. at 583. A few months later, the Court analyzed similar language contained in the Federal Bank Robbery Act and reached the same conclusion. See Pope v. United States, 392 U.S. 651, 20 L. Ed. 2d 1317, 88 S. Ct. 2145 (1968).
K.S.A. 21-4624 does not present the Hobson’s Choice which existed in Jackson. It is clear from the language of K.S.A. 21-4624(b) that a capital defendant may waive trial by jury which also waives sentencing by jury. However, where a defendant pleads guilty, thus waiving trial and sentencing by jury, he or she is still subject to imposition of the death penalty by the court. Thus, in Kansas, a defendant who pleads guilty to capital murder will be sentenced by the court according to the same standards imposed upon those sentenced by a jury and faces the same range of penalties. See K.S.A. 21-4624. Kleypas’ arguments to the contrary are without merit. Thus, there is no needless encouragement of guilty pleas in capital cases, and there is no chilling effect on the state and federal constitutional rights to jury trial and against self-incrimination.
Issue 31. The Right to Life Under the Kansas Constitution
Kleypas argues that Kansas’ adoption of the death penalty violates §§ 1 and 9 of the Kansas Constitution Bill of Rights.
The constitutionality of a statutory scheme is a question of law over which this court has unlimited review. State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 (1996), cert. denied 521 U.S. 1118 (1997). A statutory scheme is presumed constitutional, and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down. State v. Scherzer, 254 Kan. 926, 938, 869 P.2d 729 (1994).
A. Section 9
Kleypas relies most heavily on § 9 of the Kansas Constitution Bill of Rights. This section states:
“All persons shall be bailable by sufficient sureties except for capital offenses, where proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.”
Kleypas first draws a distinction between this language and that of the Eighth Amendment to the United States Constitution which states:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
According to Kleypas, although capital punishment per se does not violate the Eighth Amendment, it does violate § 9 of the Kansas Constitution Bill of Rights.
Section 9 of the Kansas Constitution Bill of Rights prohibits infliction of cruel or unusual punishment by the State. The prohibition is directed primarily at the kind of punishment imposed rather than its duration. State v. McCloud, 257 Kan. 1, 3, 891 P.2d 324, cert. denied 516 U.S. 837 (1995). Nonetheless, Kansas courts have held that the length of a sentence may be so excessive as to constitute cruel or unusual punishment. State v. McDaniel & Owens, 228 Kan. 172, 185, 612 P.2d 1231 (1980). “Cruel and unusual punishment involves punishment that shocks the conscience or which seems inhumane or barbarous.’ ” Scherzer, 254 Kan. at 939.
This court has on numerous occasions faced the issue of whether the length of a particular sentence constitutes cruel or unusual punishment in a variety of contexts. See, e.g., State v. Tyler, 251 Kan. 616, 644-46, 840 P.2d 413 (1992) (consecutive sentences totaling 111 to 330 years not cruel and unusual punishment); State v. Weigel, 228 Kan. 194, 202, 612 P.2d 636 (1980) (sentence not cruel and unusual because it was longer than those given to the defendant’s accomplices); State v. Freeman, 223 Kan. 362, 368, 574 P.2d 950 (1978) (statute fixing mandatory minimum prison term without parole not cruel and unusual); Cippola v. State, 207 Kan. 822, 824, 486 P.2d 1391 (1971) (Habitual Criminal Act sentence enhancement does not constitute infliction of cruel or unusual punishment).
Less frequently this court has considered the question of whether the nature of the punishment is cruel or unusual. See, e.g., State v. Scherzer, 254 Kan. at 939 (legislature’s decision to allow house arrest for one type of crime and not for another was not cruel and unusual punishment); State v. Kilpatrick, 201 Kan. 6, 18-19, 439 P.2d 99 (1968) (hanging by the neck is not cruel and unusual punishment); State v. White, 44 Kan. 514, 515-17, 25 Pac. 33 (1890) (imprisonment at hard labor not per se cruel or unusual under § 9).
In both contexts, this court has generally not drawn a distinction between the analysis of whether a sentence is cruel or unusual under the state constitution and whether a sentence is cruel and unusual under the federal Constitution. See, e.g., Tyler, 251 Kan. at 644-46 (lengthy consecutive sentences did not violate “cruel and unusual punishment prohibition found in § 9 of the Kansas Constitution Bill of Rights”); Kilpatrick, 201 Kan. at 18-19 (death by hanging did not violate § 9 or the Eighth Amendment because hanging is not cruel and unusual; no separate analysis of state and federal provisions). In State v. Scott, 265 Kan. 1, 5, 961 P.2d 667 (1998), we stated:
“Although we have the right to interpret our Kansas Constitution in a manner different than the United States Constitution has been construed, [citation omitted], we have not traditionally done so. [Citation omitted.] The wording of both clauses at issue is nearly identical, and we will look to constructions of both provisions in reaching our conclusions herein.”
Kleypas argues that despite this court’s historical treatment of the two provisions as interchangeable, the framers of the Kansas Constitution deliberately chose the phrase “cruel or unusual” instead of “cruel and unusual” for some reason not specified by Kleypas but which is nonetheless “significant, and cannot be ignored.”
It is clear from records available that Kansas founders present at the Wyandotte Convention of 1859 decided to model the Kansas Constitution after that of Ohio, including its Preamble and Bill of Rights. Larimer, Wyandotte Constitutional Convention, pp. 39-40, 678 (1920). At that time, the Ohio Constitution prohibited the infliction of cruel “and” unusual punishment. See Ohio Const, of 1851, art. 1, § 9. There was little or no discussion of § 9 of the Kansas Constitution Bill of Rights, save the suggestion that the “or” between cruel and unusual be replaced with “nor.” The suggestion was apparently adopted but never appeared in the final version of the constitution. Larimer, p. 288. In fact, the only section of the Bill of Rights extensively debated was § 1, referring to equal rights including life, liberty, and pursuit of happiness, which was the basis for a contentious slavery debate. Larimer, p. 697.
There is nothing in the available history of the constitutional convention which suggests a significant reason for the choice of an “or” instead of an “and” between cruel and unusual in § 9. Further, § 9 itself references “capital offenses” in the context of declaring them nonbailable where the proof is evident or the presumption great. Kleypas argues that this reference does not confer constitutional stature upon the death penalty but merely recognizes its existence at the time of the section’s adoption. However, even the mere recognition of its existence by the framers suggests that the punishment itself was not at the time considered “unusual.”
Kleypas also cites two cases in other states in which state constitutions prohibiting infliction of “cruel or unusual” punishment were construed to invalidate legislatively imposed death penalty schemes. In People v. Anderson, 6 Cal. 3d 628, 100 Cal. Rptr. 152, 493 P.2d 880, cert. denied 406 U.S. 958 (1972), the California Supreme Court held that Anderson’s death sentence violated the California Constitution’s prohibition against cruel or unusual punishment. 6 Cal. 3d at 633-34. In reaching its decision, the court reviewed its constitutional history on the cruel or unusual punishment provision in its state constitution, noted the absence of discussion or debate on the language regarding “cruel or unusual punishment” at the constitutional convention, noted that the delegates relied on constitutional models which featured “cruel and unusual” provisions, and concluded that the court could not assume the framers chose the disjunctive option “or” haphazardly. 6 Cal. 3d at 634-48.
The court also analyzed what it called “incidental references” to the death penalty in the body of the California Constitution. The court reasoned the references did no more than acknowledge the existence of capital punishment in nineteenth century society. 6 Cal. 3d at 638. Recognizing its duty to confront and resolve difficult constitutional issues, the court acknowledged its historical practice of superimposing an Eighth Amendment analysis on the state constitution’s Cruel or Unusual Punishment Clause. 6 Cal. 3d at 639-41. Within this context, the court held the death penalty to be: (1) cruel in its physical and psychological effects, as well as dehumanizing; and (2) unusual in its infrequent application and waning popularity in other states and around the world. 6 Cal. 3d at 649-57.
The Massachusetts Supreme Court invalidated its death penalty on a similar basis in District Attorney for the Suffolk District v. Watson, 381 Mass. 648, 411 N.E.2d 1274 (1980). In a declaratory action, the Suffolk District Attorney sought a determination of whether the state constitution’s Cruel or Unusual Punishment Clause prohibited capital punishment. 381 Mass. at 649-50. The court held that the death penalty was unconstitutionally cruel because it offended contemporary standards of decency and would necessarily be arbitrarily inflicted. 381 Mass. at 661-62, 665.
Interestingly, the voters of California and Massachusetts subsequently amended their state constitutions to clarify that the death penalty does not constitute cruel or unusual punishment within the meaning of the state constitution. California v. Frierson, 25 Cal. 3d 142, 184, 158 Cal. Rptr. 281, 599 P.2d 587 (1979); Massachusetts v. Colon-Cruz, 393 Mass. 150, 152, 470 N.E.2d 116 (1984). Commentators have dubbed Anderson “aggressive state constitutional lawmaking” which “exemplifies the activist state bench using the state constitution to promote a liberal agenda.” In short, the opinion was a fine example of “state constitutional chutzpah.” Latzer, Essays: The Most Noteworthy State Constitutional Decisions: State Constitutional Chutzpah, 59 Alb. L. Rev. 1733 (1996).
Individual jurists on other states’ high courts have attempted to follow the lead of Anderson and Watson by attacking the death penalty on state constitutional grounds regardless of whether their state constitutions prohibited cruel and unusual punishment, cruel or unusual punishment, or contained different language altogether. These efforts have been entirely unsuccessful. See Tennessee v. Dicks, 615 S.W.2d 126, 132-42 (Tenn.) (Brock, C.J., dissenting), cert. denied 454 U.S. 933 (1981); Washington v. Rupe, 101 Wash. 2d 664, 711-13, 683 P.2d 571 (1984) (Dolliver, J., concurring); Hopkinson v. Wyoming, 632 P.2d 79, 199-216 (Wyo. 1981) (Rose, C.J., concurring and dissenting), cert. denied 455 U.S. 922 (1982). Other courts have rejected Anderson challenges outright. Peterson v. Mississippi, 268 So. 2d 335, 336 (Miss. 1972) (“The Anderson opinion, which is essentially an excellent symposium on the subject of capital punishment, merits serious consideration, but a careful study of it and some of the source material upon which it is based does not persuade us that its conclusions are valid.”); Anderson v. State, 932 S.W.2d 502, 509-10 (Tex. Crim.), cert. denied 521 U.S. 1122 (1996).
We note that most courts facing a state constitutional challenge to the death penalty have not engaged in an analysis different from that required under the Eighth Amendment, regardless of the phraseology of their state constitution’s cruel and/or unusual punishment clause. Indeed, many engage in little analysis at all. See, e.g, Harris v. Alabama, 352 So. 2d 460, 475-77 (Ala. Crim. App. 1976); Graham v. Arkansas, 253 Ark. 462, 463, 486 S.W.2d 678 (1972); Delaware v. Dickerson, 298 A.2d 761, 767-78 (Del. 1972); Raulerson v. Florida, 358 So. 2d 826, 828-29 (Fla.), cert. denied 439 U.S. 959 (1978); Gilreath v. Georgia, 247 Ga. 814, 840, 279 S.E.2d 650 (1981), cert. denied 456 U.S. 984 (1982); Lowery v. Indiana, 478 N.E.2d 1214, 1219-20 (Ind. 1985), cert. denied 475 U.S. 1098 (1986); Louisiana v. Edwards, 419 So. 2d 881, 889 (La. 1982); Missouri v. Mallett, 732 S.W.2d 527, 539 (Mo.), cert. denied 484 U.S. 933 (1987); Nebraska v. Anderson and Hochstein, 207 Neb. 51, 71-72, 296 N.W.2d 440 (1980), cert. denied 450 U.S. 1025 (1981); New Jersey v. Ramseur, 106 N.J. 123, 168-82, 524 A.2d 188 (1987); New Mexico v. Garcia, 99 N.M. 771, 777, 664 P.2d 969, cert. denied 462 U.S. 1112 (1983); Glidwell v. Oklahoma, 663 P.2d 738, 743 (Okla. Crim. 1983); Pennsylvania v. Zettlemoyer, 500 Pa. 16, 76-77, 454 A.2d 937 (1982), cert. denied 461 U.S. 970 (1983); South Carolina v. McDowell, 266 S.C. 508, 516, 224 S.E.2d 889 (1976); Tennessee v. Austin, 618 S.W.2d 738, 741 (Tenn.), cert. denied 454 U.S. 1128 (1981); Smith v. Texas, 683 S.W.2d 393, 409 (Tex. Crim. 1984); Gray v. Virginia, 233 Va. 313, 320, 356 S.E.2d 157 (1987), cert. denied 484 U.S. 872 (1987); Washington v. Campbell, 103 Wash. 2d 1, 31-35, 691 P.2d 929 (1984), cert. denied 471 U.S. 1094 (1985); Hopkinson v. Wyoming, 664 P.2d 43, 63-64 (Wyo.), cert. denied 464 U.S. 908 (1983).
We decline to interpret the Cruel and Unusual Punishment Clause found in § 9 of the Kansas Constitution Bill of Rights in a manner different from that found in the Eighth Amendment to the United States Constitution. As a result, we conclude that the death penalty does not constitute cruel and unusual punishment per se under the Kansas Constitution.
B. Section 1
Finally, Kleypas argues that the death penalty violates § 1 of the Kansas Constitution Bill of Rights. The provision states:
“All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
Kleypas distinguishes this language from that of the Fourteenth Amendment to the federal Constitution, which states in part in Section 1:
“[N]or shall any State deprive any person of life, liberty, or property, without due process of law.”
Kleypas argues that, unlike the federal version which does not allow the taking of life without due process of law, the above language in our state constitution simply does not contemplate the taking of a life by the State under any circumstances. He'contends that die Kansas Constitution confers upon him an absolute right to life.
The framers of the Kansas Constitution spent a considerable amount of time debating the proposed § 1 of the Bill of Rights. The debate, however, was clearly grounded in the issue of slavery. Larimer, pp. 271-85. One participant raised the concern that the proposed language exhibited the “poison of higher-lawism,” and would have the effect of insulating individuals from the reach of criminal law because it provided an inalienable right of liberty. Larimer, p. 276. This point of the debate evolved into one over the enforceability of fugitive slave laws in Kansas. Larimer, pp. 276-79. Another participant limited the debate by stating that the language did not “propose that the authority of the State shall not hold the persons of men if they have committed crime, but simply that this right exists prior to law, and is inalienable by the person holding it — that is, he cannot sell it or dispossess himself of it.” Larimer, p. 280. Samuel Kingman, who proposed the language ultimately adopted, stressed that he chose the words because of their similarity to those in the Declaration of Independence and that he did not wish to “change the clothing of these ideas.” Larimer, p. 283.
We note that Kleypas’ argument, though somewhat novel, has been soundly rejected by other state courts. See, e.g., Ruiz v. Arkansas, 299 Ark. 144, 152-53, 777 S.W.2d 297 (1989); Missouri v. Newlon, 627 S.W.2d 606, 612-13 (Mo. 1982); Slaughter v. Oklahoma, 950 P.2d 839, 861-62 (Okla. Crim. 1997).
Kleypas would have this court stretch the meaning of the venerable words in § 1 of the state Bill of Rights far beyond their intended purpose. This we decline to do. We conclude that Kansas’ death penalty scheme does not violate the spirit or the letter of § 1.
Issue 32. Failure to Make Written Findings as to Mitigators
Kleypas argues that the Kansas death penalty scheme violates the federal and state Constitutions because it does not require the jury to specify in writing which if any mitigating factors it found to exist during the sentencing phase of the trial. Kleypas argues that such failure renders meaningful trial and appellate review of the sentence impossible, violating his right to due process and his right to be free from cruel and unusual punishment.
K.S.A. 21-4624(e) requires the jury, if its verdict is a unanimous recommendation of death, to designate in writing the statutoiy aggravating circumstances it found beyond a reasonable doubt. K.S.A. 21-4624(f) directs the trial court to review the jury verdict of death to determine whether the verdict is supported by the evidence. Further, K.S.A. 21-4627(c)(2) provides that this court shall determine whether the evidence supports the jury’s findings with regard to the weighing of the aggravating and mitigating circumstances.
Kleypas first suggests that the Kansas statutory scheme requires written findings of mitigating circumstances. In support, he cites K.S.A. 21-4624(e), which requires the court to weigh mitigating factors “which are found to exist.” However, this does not equate to a requirement of written findings regarding mitigating circumstances. Clearly, K.S.A. 21-4624(e) does not require written findings.
Kleypas argues in the alternative that the lack of a requirement that the jury provide a written list of mitigators found to exist is a constitutional infirmity fatal to the validity of Kansas’ death penalty scheme. Two cases relied on by Kleypas, Woodson v. North Carolina, 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976); and Gardner v. Florida, 430 U.S. 349, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977), do not support his argument that mitigating factors found to exist must be written.
In Woodson, the United States Supreme Court considered the question of whether a death sentence imposed under a statute requiring a death sentence for a broad category of homicides constituted cruel and unusual punishment as defined by the Eighth and Fourteenth Amendments. 428 U.S. at 287. The Court found the mandatory death penalty scheme violated contemporary standards of decency and thus fit the definition of cruel and unusual punishment. 428 U.S. at 301. Further, the scheme failed to guide the jury in its determination of whom to sentence to death and whom to spare and failed to allow particularized consideration of the character and record of each individual defendant. 428 U.S. at 303-04.
In Gardner, the jury returned an advisory verdict of life imprisonment. The trial court imposed the death penalty based in part on information contained in a presentence report which was not disclosed to the parties. The United States Supreme Court reversed, holding that Gardner was denied due process of law because his death sentence was based in part on information that he had no opportunity to deny or explain. 430 U.S. at 351.
Contrary to Kleypas’ assertion, neither case stands for the proposition that a jury must state its findings with respect to mitigating circumstances. Nor are the other cases cited by Kleypas persuasive. In Arizona v. Leslie, 147 Ariz. 38, 708 P.2d 719 (1985), the Arizona Supreme Court did hold that “the better practice is for the trial court to place, on the record, a fist of all factors offered by a defendant in mitigation and then explain his reasons for accepting or rejecting them.” 147 Ariz. at 50. However, the Arizona statute at issue in Leslie expressly required the verdict to set forth findings as to the existence or nonexistence of aggravating and mitigating factors, a requirement that is not present in the Kansas statute. Further, the Ninth Circuit limited Leslie in Jeffers v. Lewis, 38 F.3d 411, 418 (9th Cir. 1994), finding that Arizona law does not require the sentence to itemize and discuss every item of evidence in mitigation; listing is helpful but not necessary where it is clear the trial court considered all mitigation evidence.
Kleypas’ reliance on Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990), is similarly misplaced for the same reasons. Montana law required the trial court to present written findings of fact regarding determinations of aggravating and mitigating circumstances. The trial court’s failure to discuss certain mitigation evidence in its findings, according to the Ninth Circuit, violated the statute and rendered the findings supporting a death sentence incomplete. 914 F.2d at 1166. Again, Kansas has no such requirement.
Kleypas points to no cases which have held that the failure to require a written list of mitigating factors found worked a constitutional violation. To the contrary, those courts which have considered the issue have found no such constitutional requirement. See Rook v. Rice, 783 F.2d 401, 407 (4th Cir. 1986); McQueen v. Scroggy, 99 F.3d 1302, 1332 (6th Cir. 1996); Jeffries v. Blodgett, 5 F.3d 1180, 1196-97 (9th Cir. 1993); Skaggs v. Parker, 27 F. Supp. 2d 952, 997 (W.D. Ky. 1998). Written findings with regard to mitigating circumstances are not mandated either by Kansas statute or the United States Constitution, and Kleypas’ arguments to the contrary are without merit.
Issue 33. Lethal Injection as Cruel and Unusual Punishment
Kleypas argues that Kansas’ method of execution by lethal injection violates the Eighth Amendment because Kansas has failed to adopt a specific protocol for execution by lethal injection, rendering it impossible to determine whether lethal injection would constitute cruel and unusual punishment. In the absence of such an examination, according to Kleypas, the method must be assumed to be cruel and unusual and thus unconstitutional.
With regard to protocol, K.S.A. 22-4001, in effect prior to 1999, provided:
“(a) Subject to the provisions of this act, the mode of carrying out a sentence of death in this state shall be by intravenous injection of a substance or substances in a quantity sufficient to cause death in a swift and humane manner.
“(b) The secretary of corrections shall supervise the carrying out of each sentence of death and shall determine the procedures therefor, which shall be consistent with this act and the other laws of the state. The secretary of corrections shall designate one or more executioners and other persons necessary to assist in carrying out the sentence of death as provided in this section.
“(c) In order to provide the secretary of corrections with assistance in selecting the type of substance or substances to be administered in carrying out a sentence of death by intravenous injection in a swift and humane manner, the secretary shall appoint a panel of three persons to advise the secretary, one of whom shall be a pharmacologist, one of whom shall be a toxicologist and one of whom shall be an anesthesiologist. The panel shall also advise the secretary of corrections concerning matters related to K.S.A. 22-4015. The panel shall meet upon the call of the secretary and, for the performance of their official duties, panel members shall be paid compensation, subsistence allowances, mileage and other expenses as provided in K.S.A. 75-3223 and amendments thereto.
“(d) The secretary of corrections may designate in writing a warden of one of the correctional institutions under the secretary’s supervision to perform the duties imposed upon the secretary by this section . . . .”
The statute was amended in 1999 by adding in subsection (b) the requirement that the identity of executioners be kept confidential and by completely rewriting subsection (c) as follows:
“The secretary of corrections shall select the type of substance or substances to be administered in carrying out a sentence of death by intravenous injection in a swift and humane manner. The secretary of health and environment shall certify to the secretary of corrections that the substance or substances selected by the secretary of corrections will result in death in a swift and humane manner. If the secretary of corrections desires to change the substance or substances to be ad ministered from those previously certified by the secretary of health and environment, die proposed substance or substances also shall be certified as provided in this section.” K.S.A. 1999 Supp. 22-4001(c).
The Secretary of Corrections earlier this year adopted an execution protocol. Since Kleypas’ argument is directed to the Secretary’s failure to establish a protocol, we do not need to address the constitutionality of Kansas’ method of execution at this time.
Issue 34. Death Penalty under International Law
Kleypas’ final argument regarding the constitutionality of the death penalty is that Kansas’ death penalty statutes violate international law on two grounds: (1) Customary international law and specific international treaties prohibit capital punishment; and (2) customary international law and specific international treaties prohibit reinstatement of the death penalty by a governmental unit once it has been abolished. We find this argument to be without merit. The clear weight of federal and state authority dictates that no customary international law or international treaty prohibits the State of Kansas from invoking the death penalty as a punishment for certain crimes. See Stanford v. Kentucky, 492 U.S. 361, 106 L. Ed. 2d 306, 109 S. Ct. 2969 (1989); White v. Johnson, 79 F.3d 432, 439 (5th Cir. 1996); United Mexican States v. Woods, 126 F.3d 1220, 1223 (9th Cir. 1997); California v. Ghent, 43 Cal. 3d 739, 778-79, 239 Cal. Rptr. 82, 739 P.2d 1250 (1987); Domingues v. Nevada, 114 Nev. 783, 785, 961 P.2d 1279 (1998); New Jersey v. Nelson, 155 N.J. 487, 512, 715 A.2d 281 (1998); Hinojosa v. Texas, 4 S.W.3d 240, 252 (Tex. Crim. 1999).
Constitutional Issues — Conclusion
The Kansas Legislature intended to create a constitutional death penalty. In order to carry out that intent, we have construed K.S.A. 21-4624(e) to require that the aggravating circumstances must outweigh the mitigating circumstances in order for a death sentence to be imposed. This construction makes it necessary to vacate Kleypas’ sentence and remand for a new sentencing hearing. However, we conclude that, given our construction of K.S.A. 21-4624(e), the death penalty as set out in the Kansas statutes passes constitutional muster.
PART III — SENTENCING ISSUES
The final group of Kleypas’ assigned errors arise during the penalty phase or separate sentencing proceeding under K.S.A. 21-4624(b). The jury determined that Kleypas should be sentenced to death. Given our interpretation of the weighing equation contained in K.S.A. 21-4624(e), Kleypas’ sentence must be vacated and a new sentencing hearing conducted. However, we choose to address the sentencing issues raised by Kleypas that have the potential to reoccur in order to give guidance to the trial court for the new sentencing hearing. Therefore, we will analyze the following issues:
State’s Failure to Move for a Separate Sentencing Hearing
Verdict Forms and Instructions Regarding the Verdict
Admission of Circumstances Regarding Prior Conviction
Failure to Allow Evidence of Prison Conditions
Instruction on the Definition of Mitigation
Whether the Penalty Phase Instructions Prevented the Jury from Considering Mitigating Circumstances
Failure to Inform Jury of Sentences that Might be Imposed for Other Convictions
Failure to Give Limiting Instruction Regarding Inconsistency Between Heinous, Atrocious, or Cruel Aggravating Manner Circumstance and Avoiding Arrest Aggravating Circumstance
Prosecutorial Misconduct in the Penalty Phase
Issue 35. State’s Failure to Move for a Separate Sentencing Hear-m
Kleypas contends that the entire penalty phase of his trial is unlawful because the State failed to move for a separate sentencing proceeding upon his conviction as required by K.S.A. 21-4624(b). He argues that the State’s failure to do so precludes the imposition of a death sentence.
On July 25, 1997, the jury returned a verdict finding Kleypas guilty of capital murder. The trial court ordered the jury to return on July 29, 1997, for a capital sentencing proceeding. On July 29, 1997, immediately after the State’s first witness was sworn, Kleypas objected to the proceeding and requested that the juiy be discharged. He based his objection upon the State’s failure to move under K.S.A. 21-4624(b) for a separate sentencing proceeding to determine whether he should be sentenced to death. The State argued that the required notice had been given at arraignment pursuant to K.S.A. 21-4624(a). In the alternative, the State orally moved pursuant to K.S.A. 21-4624(b) for a separate sentencing proceeding. The trial court overruled the objection, finding that notice had been given by the State.
In relevant part, K.S.A. 21-4624(b) provides that “upon conviction of a defendant of capital murder, the court upon motion of the county or district attorney, shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death.” (Emphasis added.) It is important not to confuse this motion requirement with the notice requirements of K.S.A. 21-4624(a). A failure to comply with the following notice requirements of K.S.A. 21-4624(a) precludes the imposition of the death penalty:
“If a defendant is charged with capital murder, the county or district attorney shall file wxitten notice if such attorney intends, upon conviction of the defendant, to request a separate sentencing proceeding to determine whether the defendant should be sentenced to death. Such notice shall be filed with the court and served on the defendant or the defendant’s attorney, not later than five days after the time of arraignment. If such notice is not filed and served as required by this subsection, the county or district attorney may not request such a sentencing proceeding and the defendant, if convicted of capital murder, shall be sentenced as otherwise provided by law, and no sentence of death shall be imposed hereunder." (Emphasis added).
The State filed its notice under the provisions of K.S.A. 21-4624(a). However, Kleypas correctly points out that the State failed to move for a separate sentencing proceeding after his conviction of capital murder under K.S.A. 21-4624(b) before the separate sentencing proceeding commenced. Does this failure invalidate the separate sentencing proceeding?
Kleypas argues that the State’s failure precludes the imposition of a death sentence and that he now must be sentenced by the court for a term of years. The State acknowledges its failure to comply with the motion provisions of K.S.A. 21-4624(b) but argues that this provision, unlike the mandatory notice provisions of K.S.A. 21-4624(a), is directory only. The question is one of law and our review is unlimited. State v. Lewis, 263 Kan. 843, 847, 953 P. 2d 1016 (1998). The resolution of the issue involves a determination of whether the procedural language of K.S.A. 21-4624(b) is mandatory or directory.
The criteria for determining whether a statute should be deemed mandatory or directory is established in State v. Deavers, 252 Kan. 149, 167, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993):
“Whether language in a statute is mandatory or directory is to be determined on a case-by-case basis and the criterion as to whether a requirement is mandatory or directory is whether compliance with such requirement is essential to preserve the rights of the parties. Griffin v. Rogers, 232 Kan. 168, 174, 653 P.2d 463 (1982). In determining whether a legislative provision is mandatory or directory, it is a general rule that where strict compliance with the provision is essential to the preservation of the rights of parties affected and to the validity of the proceeding, the provision is mandatory, but where the provision fixes a mode of proceeding and a time within which an official act is to be done, and is intended to secure order, system, and dispatch of the public business, the provision is directory. Factors which would indicate that the provisions of a statute or ordinance are mandatory are: (1) the presence of negative words requiring that an act shall be done in no other manner or at no other time than that designated, or (2) a provision for a penally or other consequence of noncompliance.” Paul v. City of Manhattan, 212 Kan. 381, Syl. ¶¶ 1, 2, 511 P.2d 244 (1973).
We conclude that the motion requirement of K.S.A. 21-4624(b) is directory, not mandatory. The statute does not establish a specific time within which the prosecution’s motion for a separate sentencing proceeding must be made; rather, the motion requirement is intended to secure the orderly and systematic dispatch of the public business. Unlike the notice provisions found in K.S.A. 21-4624(a), there are no provisions in K.S.A. 21-4624(b) for a penalty or other consequences with noncompliance. By its express language, K.S.A. 21-4624(b) fixes a mode of proceeding directing the State to move for a separate sentencing proceeding. The State’s delay in so moving in this case caused no prejudice to the defendant. The trial court’s denial of Kleypas’ motion to set aside the sentencing proceeding was not error.
Issue 36. Verdict Forms and Instructions Regarding the Verdict
Kleypas argues that the verdict forms and the trial court’s instructions concerning the verdict were improper in that they instructed the jury that a unanimous decision was required in order to impose a life sentence. He argues that this is contrary to Kansas law. We have reviewed the trial court’s instructions concerning the verdict and the verdict forms provided to the juxy and conclude that they are seriously deficient.
We begin with a recitation of the statute regarding the verdict, K.S.A. 21-4624(e), which provides:
“If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments thereto exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced to death; otherwise, the defendant shall be sentenced as provided by law. The jury, if its verdict is a unanimous recommendation of a sentence of death, shall designate in writing, signed by the foreman of the jury, tire statutory aggravating circumstances which it found beyond a reasonable doubt. If, after a reasonable time for deliberation, the jury is unable to reach a verdict, the judge shall dismiss the jury and impose a sentence of imprisonment as provided by law and shall commit the defendant to the custody of the secretary of corrections. In nonjury cases, die court shall follow the requirements of this subsection in determining the sentence to be imposed.”
We note that pursuant to our decision regarding the weighing equation, the jury must find the aggravating circumstances outweigh the mitigating circumstances rather than that the aggravating circumstances are not outweighed by the mitigating circumstances. However, this does not affect the substance of our analysis of this issue. The major problem with the verdict form given lies not with its recitation of the weighing equation, although this statement is certainly incorrect given our construction of the weighing equation above. Rather, the major problem with the verdict form given is the manner in which it requires the jury to reach and report its decision.
The sentencing proceeding under our capital murder scheme has but one purpose: To determine whether the defendant should be sentenced to death. See K.S.A. 21-4624(b). Under K.S.A. 21-4624, only two options are contemplated: Either the jury will unan imously agree beyond a reasonable doubt that one or more aggravating circumstances exist and further that such aggravating circumstance or circumstances outweigh the mitigating circumstance or circumstances found to exist and it sentences the defendant to death; or the jury fails to so unanimously find and the defendant is not sentenced to death.
The nature of this verdict is illustrated by our decision in State v. Stafford, 255 Kan. 807, 825, 878 P.2d 820 (1994), a hard 40 case under the pre-death penalty version of K.S.A. 21-4624. In Stafford, we examined a situation where the trial court excused a juror during sentencing deliberations on the grounds that the juror could not reach a decision. In finding this action to be reversible error, we noted:
"This case differs somewhat from prior cases in which a juror has been replaced. For a jury determining guilt, a hung jury results in the defendant being neither convicted nor acquitted; a hung jury leaves the case undecided and subject to retrial. In the hard 40 context, a hung jury is not an undecided jury. By statute, (K.S.A. 1993 Supp. 21-4624[5]), a hung jury results in a sentence of imprisonment for life with eligibility for parole. Thus, to replace a juror who may cause a jury to be unable to reach a unanimous vote to recommend the hard 40 sentence is to deprive the defendant of a verdict.”
Instruction No. 15, given by the trial court in this case, explained the two options to the jury, stating:
"At the conclusion of your deliberations, you shall sign the verdict form upon which you agree.
“The verdict forms provide the following alternative verdicts:
"A. Finding unanimously beyond a reasonable doubt that there are one or more aggravating circumstance(s) and that they [outweigh] any mitigating circumstance^), and sentencing the defendant to death;
"or
"B. Reasonable doubt that aggravating circumstance(s) [outweigh] any mitigating circumstance(s) and that the defendant should be sentenced as provided by law by the Court.”
Instruction No. 15 informed the jury that it would be confronted with two verdict forms reflecting the two choices mandated by K.S.A. 21-4624(e): It would either unanimously find beyond a reasonable doubt that there are one or more aggravating circumstance^) and that they [outweigh] any mitigating circumstance(s), in which case it would sign the verdict form sentencing the defendant to death and designate on the verdict form the aggravating circumstances found; or it would fail to make such a finding, in which case it would sign the verdict form indicating the defendant should not be sentenced to death.
However, the verdict forms in this case did not give the jury those two options. The first verdict form stated:
“We, the jury, impaneled and sworn, do upon our oath, or affirmation, unanimously find beyond a reasonable doubt that the following aggravating circumstance^) have been established by the evidence and [outweigh] any mitigating circumstance(s) found to exist. (The presiding juror shall place an X in the square in front of such aggravating circumstance(s) found to exist.)
“[ ] That the defendant was previously convicted of a felony in which the defendant inflicted great bodily harm, disfigurement, dismemberment or death on another.
“[ ] That the defendant committed the crime in order to avoid or prevent a lawful arrest or prosecution.
“[ ] That the defendant committed the crime in an especially heinous atrocious, or cruel manner as these terms are defined in Instruction No. 11.
“[A]nd so, therefore, unanimously sentence the defendant to death.”
Thus, the first verdict form accurately stated the first of the two choices. The problem, however, was with the second verdict form given to the jury which should have provided that it was to be signed if the jury did not unanimously find the existence of aggravating circumstances which outweighed any mitigating circumstances. Instead, the verdict form stated: “We, the jury, impaneled and sworn, do upon our oath or affirmation, unanimously determine that a sentence as provided by law be imposed by the Court.”
Thus, the second verdict form erroneously informed the jury that it had to unanimously agree that a sentence other than death should be imposed. This is contrary to Kansas law and further directly contradicts Instruction No. 15. As noted above, K.S.A. 21-4624 does not require the jury to unanimously conclude that a death sentence is unwarranted in order to sentence the defendant to a punishment other than death; rather, the jury must only fail to unanimously conclude beyond a reasonable doubt that a death sentence is warranted.
The verdict forms used in this case were taken directly from the Pattern Instructions for Kansas (PIK). See PIK Crim. 3d 68.14-B-1; PIK Crim. 3d 68.17. We have advised trial courts to follow PIK and for good reason. “ The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions/ ” State v. Dias, 263 Kan. 331, 335, 949 P.2d 1093 (1997). However, the second verdict form used in this case, as provided for in the PIK, was inaccurate in that it failed to reflect the law in Kansas. The verdict form was also unclear in that it failed to inform the jury what it should do if it did not reach a unanimous verdict for death or a unanimous verdict for life. The verdict form was confusing in that it directly contradicted jury Instruction No. 15, which informed the jury what the verdict form should contain. The verdict form was inconsistent with Kansas law and was misleading and confusing.
Kleypas brought this problem with the verdict form to the trial court’s attention at the sentencing hearing. The trial court recognized that a problem existed and attempted to cure the problem by issuing an additional instruction which informed the jury that if it failed to reach a verdict, Kleypas would be sentenced as provided by law. This is similar to the instruction used by the court in Washington in In re Personal Restraint of Benn, 134 Wash. 2d 868, 952 P.2d 116 (1998). In Benn, the jury was given a verdict form which asked the question: “Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?” The jury was then provided with three options: TES,” “NO,” and “THE JURY IS UNABLE TO UNANIMOUSLY AGREE.” 134 Wash. 2d at 929. The Washington Supreme Court found that because the verdict form gave the jury the option of a nonunanimous verdict, the challenged instruction was constitutional. 134 Wash. 2d at 932.
In contrast to Benn, the corrective jury instruction in the case at hand was just an instruction. The verdict form itself still did not give the juiy a method by which it could register a nonunanimous verdict. It is clear that under Kansas law, one juror has the ability to negate the imposition of the death penalty by having a reason able doubt about its propriety. See K.S.A. 21-4624(e) (unanimity required to impose the death penalty). However, under the verdict form used in this case, a juror was unable to register his or her reasonable doubt. Even though the trial court informed the jury that its failure to reach a unanimous verdict would result in the imposition of a sentence other than death, the verdict form provided no way for the jury to return other than a unanimous verdict.
The sole purpose of the penalty phase is to determine whether the defendant should be sentenced to death. The erroneous verdict form affected the very heart of this decision because it incorrectly stated the standard that the jury was to apply in considering its decision. Under such circumstances, the verdict form materially prejudiced Kleypas’ right to a fair trial. Had we not already determined that a new sentencing hearing was required, the use of this jury instruction would also require vacating of Kleypas’ death sentence and remanding for a new penalty phase hearing. See Kubat v. Thieret, 867 F.2d 351, 372-74 (7th Cir. 1989); State v. Brooks, 75 Ohio St. 3d 148, 162, 661 N.E.2d 1030 (1996).
In accordance with our decision, we further hold that the following second verdict form should be used in addition to the first verdict form in all death penalty cases in Kansas, replacing PIK Crim. 3d 68.17:
“CAPITAL MURDER — SENTENCE OF DEATH — VERDICT FORM FOR SENTENCE AS PROVIDED BY LAW
“SENTENCING VERDICT
“We, die jury, impaneled and sworn, do upon our oath or affirmation state that we are unable to reach a unanimous verdict sentencing the defendant to death.”
Such an instruction accurately reflects the law in Kansas and the responsibility of the juiy. The instruction does not confuse the jury concerning any need for a decision regarding life to be unanimous. Implicit within the verdict form is the concept that a single juror may block a death verdict and the verdict form allows a juror to give effect to his or her determination that death is not an appropriate sentence.
Issue 37. Admission of Circumstances Regarding Prior Conviction
Kleypas argues that the trial court erred in allowing evidence of the circumstances underlying his 1977 conviction for the murder of Bessie Lawrence. He contends that such evidence violated the provisions of K.S.A. 21-4625(1), as well as his Eighth and Fourteenth Amendment rights under the United States Constitution and his rights under § § 9 and 18 of the Kansas Constitution Bill of Rights.
Kleypas filed a motion to limit the production of evidence of the “prior conviction” aggravating circumstance to the admission of the journal entry of the conviction. After a comprehensive consideration of case law, the court ruled that although it would not allow the prior second-degree murder conviction to be relitigated, some of the underlying circumstances of the prior conviction would be admitted into evidence subject to the court’s discretion on a witness by witness basis.
Kleypas offered to stipulate that he was previously convicted of second-degree murder and that this conviction was a felony in which he inflicted death on another. However, the trial court refused to force the State to accept the stipulation.
K.S.A. 21-4625 identifies and limits what the State may prove as aggravating circumstances during the penalty phase of a capital murder case. The aggravating circumstance we now consider allows the State to establish that “[t]he defendant was previously convicted of a felony in which the defendant inflicted great bodily harm, disfigurement, dismemberment or death on another.” K.S.A. 21-4625(1).
Kleypas argues that the facts and circumstances underlying his 1977 murder conviction are irrelevant and inflammatory. He interprets K.S.A. 21-4625(1) to allow only the fact of the prior conviction to prove the aggravating circumstance, and that once he offered to stipulate to this circumstance, any other information concerning the murder was not relevant. According to Kleypas, the State should have been forced to accept his stipulation, citing Old Chief v. United States, 519 U.S. 172, 136 L. Ed. 2d 574, 117 S. Ct. 644 (1997).
In Old Chief, the defendant was convicted of assault with a dangerous weapon, use of a firearm, and possession of a firearm by anyone with a prior felony conviction. Before trial, he moved for an order requiring the government to limit its evidence to a state ment that Old Chief had been convicted of a felony. He offered to stipulate that he had been convicted of a prior felony. The government refused to accept the stipulation, insisting on its right to prove the case its own way. The district court agreed with the government and the Ninth Circuit Court of Appeals affirmed. The United States Supreme Court, however, reversed:
“[T]he scope of a trial judge’s discretion under Rule 403, . . . authorizes exclusion of relevant evidence when its ‘probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’ Fed. Rule Evid. 403.” 519 U.S. at 180.
The Court pointed to the real risk of unfair prejudice, noting that such a risk
“will be substantial whenever the official record offered by the Government would be arresting enough to lure a juror into a sequence of bad character reasoning. Where a prior conviction was for a gun crime or one similar to other charges in a pending case the risk of unfair prejudice would be especially obvious . . . .” 519 U.S. at 185.
In order to mitigate against this risk, the Court concluded:
“Given these peculiarities of the element of felony-convict status and of admissions and die like when used to prove it, there is no cognizable difference between the evidentiary significance of an admission and of the legitimately probative component of the official record the prosecution would prefer to place in evidence. For purposes of the Rule 403 weighing of the probative against the prejudicial, the functions of the competing evidence are distinguishable only by the risk inherent in the one and wholly absent from the other. In this case, as in any other in which the prior conviction is for an offense likely to support conviction on some improper ground, the only reasonable conclusion was (hat the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction, and it was an abuse of discretion to admit the record when an admission was available.” 519 U.S. at 191.
Before addressing the merits of Kleypas’ claimed error, some background of how aggravating circumstances fit within Kansas’ scheme of capita] punishment is necessary. Kansas’ statutory death penalty is similar to that of Florida; those states having a similar statutory scheme are sometimes referred to as the “Florida type” in that they limit the aggravating circumstances that a sentencing jury or a judge may consider to a statutory list. See National Judicial College and Conference of State Trial Judges, Capital Cases Benchbook, 6-2 (1994); K.S.A. 21-4625. Because the Florida scheme limits the aggravating circumstances to be considered, evidence of prior criminal history is relevant under that scheme only insofar as it goes to either establishing a statutory aggravating circumstance or rebutting a mitigating one.
Among those states which follow the Florida sentencing scheme, there is a difference of opinion as to whether testimony regarding the underlying circumstances of a defendant’s prior conviction may be admitted to prove an aggravating circumstance where the defendant offers to stipulate to the aggravating circumstance. See Rhodes v. State, 547 So. 2d 1201 (Fla. 1989); State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983); People v. Davis, 794 P.2d 159 (Colo. 1990); State v. Rose, 339 N.C. 172, 451 S.E.2d 211 (1994); Brewer v. State, 650 P.2d 54 (Okla. Crim. App. 1982); Com. v. Rompilla, 554 Pa. 378, 721 A.2d 786 (1998); State v. Gaskins, 284 S.C. 105, 326 S.E.2d 132 (1985); State v. Bigbee, 885 S.W.2d 797 (Tenn. 1994).
In Gillies, the Arizona Supreme Court held that testimony was not admissible to establish the then-aggravating circumstance that the defendant had been previously convicted of a felony involving the use or threat of violence on another person (since changed to “a serous offense”). 135 Ariz. at 511. The court instead found that the evidence should be limited to evidence of the conviction itself:
“This reading of the statute guarantees due process to a criminal defendant. Evidence of a prior conviction is reliable, the defendant having had his trial and exercised his full panoply of rights which accompany his conviction. However, to drag in a victim of appellant’s prior crime to establish the necessary element of violence outside the presence of a jury, long after a crime has been committed, violates the basic tenants of due process.
“. . . We cannot allow what is, in effect, a second trial on defendant’s prior conviction to establish the existence of an A.R.S. § 13-703(F)(2) aggravating circumstance.” 135 Ariz. at 511.
Oklahoma has judicially established a procedure for the admission of evidence to prove its aggravating circumstance that the defendant was previously convicted of a felony involving the use or threat of violence. See Brewer, 650 P.2d at 63. In Brewer, the Oklahoma Supreme Court stated:
“We therefore hold that the following must be the procedure concerning the State’s allegation of 21 O.S. 1981, § 701.12(1) in this and all future capital cases: First, as mandated by § 701.10 the defendant must be given due notice of all evidence in aggravation the State intends to present; second, the judge must review die evidence proffered by the State in support of its allegation in camera to ensure that the felonies did indeed involve the use or threat of violence to a person; third, upon a finding by die court that the prior felony convictions did involve the use or threat of violence to the person, the defendant must be given the opportunity to personally stipulate that the prior felony conviction(s) alleged by the state did involve die use or threat of violence to a person. Counsel for the defendant must not be allowed to stipulate for him. The judge must satisfy himself diat the defendant understands and appreciates die nature of the proposed stipulation and the consequences potentially arising from eitiier an agreement or a refusal to stipulate before he may accept the defendant’s decision.
“If the defendant stipulates, the State’s proof of the aggravating circumstances must be limited to introduction of the judgment and sentence in the prior felonies along with the defendant’s written stipulation that the felonies involved the use or direát of violence to the person. If the defendant refuses to so stipulate, the State shall be permitted to produce evidence sufficient to prove that the prior felonies did involve the use or threat of violence to the person. We emphasize that prosecutors and trial courts should exercise informed discretion in permitting only the minimal amount of evidence to support the aggravating circumstances. We do not today authorize the State to re-try defendants for past crimes during the sentencing stage of capital cases.” 650 P.2d at 63.
Similarly, the Tennessee Supreme Court held:
“Evidence of facts regarding a previous conviction to show that it in fact involved violence or the threat of violence to the person is admissible at a sentencing hearing in order to establish the aggravating circumstance. [Citations omitted.] However, it is not appropriate to admit evidence regarding specific facts of the crime resulting in the previous conviction, when the conviction on its face shows that it involved violence or threat of violence to the person. [Citations omitted.]” Bigbee, 885 S.W.2d at 811.
The Tennessee Supreme Court in Bigbee noted that while evidence regarding the victim of the crime for which the defendant is being sentenced is relevant, evidence regarding the victim of a prior crime is not. 885 S.W.2d at 811-12.
Florida, as well as several other jurisdictions, has concluded otherwise. In Bhodes, the Florida Supreme Court set forth the follow ing principles governing the admission of evidence to show a statutory aggravating circumstance that a defendant had been previously convicted of a violent felony:
“[I]t is appropriate in the penalty phase of a capital trial to introduce testimony concerning the details of any prior felony conviction involving the use or threat of violence to the person rather than the bare admission of conviction. [Citations omitted.] Testimony concerning the events which resulted in the conviction assist the jury in evaluating the character of the defendant and the circumstances of tire crime so that the jury can make an informed recommendation as to the appropriate sentence.
“[T]he line must be drawn when that testimony is not relevant, gives rise to a violation of a defendant’s confrontational rights, or the prejudicial value outweighs the probative value.” 547 So. 2d at 1204-05.
Colorado, Pennsylvania, and South Carolina also allow evidence of some of the underlying circumstances of the prior crime where such crime is a statutory aggravating circumstance. Colorado has held that such evidence is "part of the relevant evidence concerning the nature of the crime, [and] the character, background, and history of the defendant” which it is statutorily allowed to receive under Colo. Rev. Stat. Ann. § 16-11-103(1)(b). Davis, 794 P.2d at 202.
Pennsylvania has held that the underlying facts of the prior conviction are relevant to allow the jury to ‘"assess the weight to be given to the aggravating factor.” Rompilla, 554 Pa. at 394. South Carolina allows such evidence because the “ "consideration of the character and record of the individual, offender and the circumstances of the particular offense [are] a constitutional indispensable part of the process of inflicting the penalty of death.’ ” Gaskins, 284 S.C. at 124 (quoting Woodson v. North Carolina, 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978 [1976]).
K.S.A. 21-4624(c) provides: ""In the sentencing proceeding, evidence may be presented concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments thereto and any mitigating circumstances.” This language is very similar to the statute in Colorado which the Colorado Supreme Court interpreted to allow the admission of the underlying circumstances of prior violent felonies in Davis. See 794 P.2d at 202. The above language is not included in the capital sentencing statutes of Arizona and Oklahoma. See Ariz. Rev. Stat. § 13-703; Okla. Stat., tit. 21, § 701.10 (1991), which might contribute to their Supreme Courts excluding such evidence. However, Tennessee’s statute contains the same language and its Supreme Court excludes such evidence. See Tenn. Code. Ann. § 39-13-204.
While there is merit in the position of the jurisdictions excluding such evidence where the defendant offers to stipulate, we are called upon to interpret the specific language of our legislature. We conclude that the Kansas Legislature intended by its use of the broad language in K.S.A. 21-4625 to allow some evidence of the underlying circumstances of prior convictions where the convictions constitute aggravating circumstances. This conclusion is consistent with the Kansas statutory scheme which requires that the sentencing jury in a capital proceeding actually weigh the aggravating circumstances against the mitigating circumstances in determining whether a defendant should be sentenced to death.
The weighing process in Kansas is more than a simple comparison of the number of aggravating circumstances to the number of mitigating circumstances. The quality as well as the quantity of the aggravating and mitigating circumstances is relevant to allow the jury to “assess the weight to be given to the aggravating factor.” See Rompilla, 554 Pa. at 394. A defendant with a prior history which includes a heinous crime is perhaps more worthy of death than a defendant who committed a crime which was not heinous. As stated by the Florida Supreme Court, in concluding that evidence concerning the underlying circumstances of the prior conviction was admissible:
“This is so because we believe the purpose for considering aggravating and mitigating circumstances is to engage in a character analysis of the defendant to ascertain whether the ultimate penalty is called for in his or her particular case. Propensity to commit violent crimes surely must be a valid consideration for the jury and the judge. It is a matter that can contribute to decisions as to sentence which will lead to uniform treatment and help eliminate ‘total arbitrariness and capriciousness in the imposition of the death penalty.’ ” Elledge v. State, 346 So. 2d 998, 1001 (Fla. 1997) (quoting Proffitt v. Florida, 428 U.S. 242, 49 L. Ed. 2d 913, 96 S. Ct. 2960 [1976]).
See also State v. Taylor, 304 N.C. 249, 280, 283 S.E.2d 761 (1981) (quoting passage from Elledge to support its decision reaching same result).
We agree and hold that the State is permitted to introduce evidence regarding the underlying circumstances of the prior crime to satisfy the aggravating circumstance contained in K.S.A. 21-4625(1), notwithstanding a defendant’s offer to stipulate to the existence of the aggravating circumstance. However, trial courts must be cautious in the admission of such evidence and exclude evidence that is not relevant, that violates a defendant’s confrontational rights, or that has a prejudicial effect outweighing its probative value. We conclude that the evidence admitted in this case did not constitute prejudicial error.
Issue 38. Failure to Allow Evidence of Prison Conditions
Kleypas contends that the trial court erred by refusing to allow evidence of the conditions of future incarceration and the testimony of the Secretary of Corrections as to what life would be like for Kleypas in prison. Kleypas argues that this refusal violated his Eighth Amendment rights as the evidence would have constituted mitigating evidence by showing that prison would be a highly structured environment.
Approximately 7 months before trial commenced, Kleypas moved for the admission of evidence regarding the conditions and effects of a life sentence in the Kansas correctional system. Kleypas also attempted to subpoena the Secretary of Corrections in an effort to obtain and provide information about what life would be like for Kleypas in prison. Approximately 3 months before trial commenced, the trial court denied the motion and also quashed the subpoena for the Secretary of Corrections to appear and testify regarding prison life.
The trial court excluded the evidence based upon its conclusion that the evidence was not proper mitigating evidence because it did not bear on the individual characteristics of the defendant. Two other states have recently reached a similar conclusion. See People v. Ervin, 22 Cal. 4th 48, 97, 91 Cal. Rptr. 2d 623, 990 P.2d 506 (2000); Cherrix v. Commonwealth, 257 Va. 292, 309-310, 513 S.E.2d 642 (1999).
In Cherrix, the defendant sought to introduce mitigating evidence through the testimony of an expert penologist, several Virginia corrections officials, a criminologist, a sociologist, and an individual serving a life sentence in the custody of the Virginia Department of Corrections regarding prison life and its effect on his “future dangerousness.” Finding that the trial court did not err in excluding the evidence, the Virginia Supreme Court stated:
“Although the United States Constitution guarantees the defendant in a capital case a right to present mitigating evidence to the sentencing authority, it does not limit ‘the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense.’ Lockett v. Ohio, 438 U.S. 586, 605 n.12 (1978). Code § 19.2-264.4(B) vests the trial court with the discretion to determine, subject to the rules of evidence governing admissibility, the evidence which may be adduced in mitigation of die offense. [Citation omitted.]
“The record shows that the evidence Cherrix sought to introduce involved the general nature of prison life. The inmate’s proffered testimony sought to establish, based on the inmate’s personal prison experience, what prison life would be like for Cherrix if he received a life sentence. The officials from the Department of Corrections would have testified regarding the ability of the penal system to contain Cherrix and the cost to the taxpayers of an inmate’s life sentence. Cherrix’s counsel stated that the testimony of the expert penologist, the sociologist, and the criminologist would be similar to diat of die inmate and corrections officials. As die trial court observed, none of this evidence concerns the history or experience of the defendant. We agree with the conclusion of the trial court that ‘what a person may expect in the penal system’ is not relevant mitigation evidence. Accordingly, we will affirm the judgment of the trial court excluding this evidence.” 257 Va. at 309-10.
The Cherrix court did note, however: “Contrary to Cherrix’s assertion, none of the evidence proffered at trial addressed Cherrix’s ability to conform or his experience in conforming to prison life, as the defendant’s evidence did in Skipper [v. South Carolina], 476 U.S. at 4.” 257 Va. at 310 n.4.
Kleypas argues that evidence of prison life was essential as part of his presentation of mitigating evidence that he would adapt well to life in prison. According to Kleypas, his presentation of this mit igating circumstance was “doomed to failure” without this evidence because although he could present evidence that he would function well in a highly structured prison environment, this would not overcome the generally held perspective that prison was not a highly structured environment but, rather, a “country club.” The essence of Kleypas’ argument is not that evidence of prison conditions was a mitigating circumstance but, rather, that it was necessary to allow him to establish the mitigating circumstance that he would do well in prison.
Evidence that a defendant is well behaved in prison and will in the future be well behaved is a mitigating circumstance. Skipper v. South Carolina, 476 U.S. 1, 4-5, 90 L. Ed. 2d 1, 106 S. Ct. 1669 (1986) (stating that “evidence that a defendant would not pose a danger if spared [but incarcerated] must be considered potentially mitigating.”). However, the evidence that Kleypas sought to present, the general conditions of prison life, is too far removed to be relevant as a mitigating circumstance. Such evidence might be admissible in rebuttal to counter actual evidence produced by the State showing that life in prison is in fact easy. See Solomon, A Quarter-Century of Death: A Symposium on Capital Punishment in Virginia Since Furman v. Georgia, 12 Cap. Def. J. 555 (1999) (noting that the rejection of the Eighth Amendment mitigation argument in no way effects the Fourteenth Amendment argument that the evidence may be used to rebut prosecutorial assertions).
We note that counsel for the defendant did not seek to introduce such evidence in rebuttal but sought its admission on the grounds that it was proper mitigating evidence. The trial court did not err in excluding this evidence.
Issue 39. Instruction on the Definition of Mitigation
Kleypas contends that jury Instruction No. 13, defining mitigating circumstances, impermissibly allowed the juiy to reject alleged mitigating circumstances without first considering the evidence in favor of die circumstances and that this is contrary to the Eighth Amendment, as well as the Fifth and Fourteenth Amendments to the United States Constitution.
As we have noted previously when reviewing challenges to jury instructions, this court is required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case and a jury could not reasonably be misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. State v. Mims, 264 Kan. 506, 514, 956 P.2d 1337 (1998).
Instruction No. 13 defined mitigating circumstances:
“Mitigating circumstances are those which in fairness may be considered as extenuating or reducing the degree of moral culpability or blame or which justified a sentence of less than death, although it does not justify or excuse the offense. The determination of what are mitigating circumstances is for you as jurors to resolve under the facts and circumstance of this case.”
Kleypas argues that the above language, particularly the last sentence, unconstitutionally allows the jury to determine what qualifies as a mitigating circumstance. Kleypas argues that under the Eighth Amendment, the jury must consider each claimed mitigating circumstance and the evidence to support it. According to Kleypas, the jury is free to find that no evidence supports such a circumstance or to give little, if any, weight to a circumstance, but the jury is not free to find that the circumstance is not a mitigating circumstance. In support of this contention, Kleypas cites Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978), and its progeny, including Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982), and Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989).
Kleypas misinterprets the above cases. In Johnson v. Texas, 509 U.S. 350, 361, 125 L. Ed. 2d 290, 113 S. Ct. 2658 (1993), the Court made clear:
“ ‘Lockett and its progeny stand only for the proposition that a State may not cut off in an absolute manner the presentation of mitigating evidence, either by statute or judicial instruction, or by limiting the inquiries to which it is relevant so severely that the evidence could never be a part of the sentencing decision at all.’ [Citations omitted.]”
Nothing in Lockett or any of its progeny require that a jury consider all possible mitigating circumstances; rather, they simply preclude the State from foreclosing such consideration. The sentencer may not refuse to consider, as a matter of law, relevant mitigating evidence. Eddings, 455 U.S. at 114. However, the sentencer is free to conclude that some circumstances claimed to be mitigating are not mitigating circumstances. Eddings only precludes the sentencer from determining that it may not legally consider certain mitigating circumstances evidence. See 455 U.S. at 113-15. In Eddings, the sentencing judge determined that he was prevented by law from considering the petitioner’s violent upbringing as a mitigating circumstance. The Court found that this restriction violated Lockett, as evidence of the petitioner’s upbringing was relevant as a mitigating circumstance. 455 U.S. at 112-15.
In Buchanan v. Angelone, 522 U.S. 269, 275-76, 139 L. Ed. 2d 702, 118 S. Ct. 757 (1998), the Court held that the Eighth Amendment does not require that the jury be instructed that certain facts are mitigating. Complete jury discretion with regards to mitigating circumstances evidence is constitutionally permissible. Thus, a jury is free to determine for itself what circumstances it chooses to be mitigating and whether the evidence of those circumstances is sufficient.
Instruction No. 13 did not restrict the jury’s discretion to find the existence of mitigating circumstances or foreclose the jury’s consideration of mitigating evidence. It expressly listed the 31 circumstances claimed as mitigating circumstances by Kleypas and further instructed that the jury “may further consider as a mitigating circumstance(s) any other aspect of the defendant’s character, background, or record, and any other aspect of the offense which was presented in either the guilt or penalty phase and that you find to be relevant.” The trial court’s instruction properly and fairly stated the law and provides no basis for a claimed constitutional deprivation.
Issue 40. Whether the Penalty Phase Instructions Prevented the Jury from Considering Mitigating Circumstances.
Kleypas argues that the instructions given prevented the jury from considering any mitigating circumstance that the jury did not unanimously find existed. He contends that under the instructions as given, the sentencing jury could reasonably have determined that it must unanimously agree on the existence of mitigating circumstances.
In Mills v. Maryland, 486 U.S. 367, 100 L. Ed. 2d 384, 108 S. Ct. 1860 (1988), the United States Supreme Court vacated the petitioner’s death sentence because it found that the verdict form had potentially prevented the jury from considering relevant mitigating evidence that the juiy did not unanimously find to exist. The Court found that the verdict form suggested to the jury that it had to unanimously find each mitigating circumstance. The Court stated that, hypothetically, under the verdict form:
“ 'If eleven jurors agree that there are six mitigating circumstances, the result is that no mitigating circumstance is found. Consequently, there is nothing to weigh against any aggravating circumstance found and the judgment is death even though eleven jurors think the death penalty wholly inappropriate.’ ” 486 U.S. at 373-74.
The Court further found that, hypothetically, all 12 jurors might agree that some mitigating circumstances were present and even that those mitigating circumstances were sufficient to outweigh any aggravating circumstances found to exist, but unless all 12 could agree that the same mitigating circumstance was present, the jury would never be permitted to engage in the weighing process. 486 U.S. at 374.
The Court thus concluded that a death sentence should be vacated if there was a substantial probability that reasonable jurors, upon receiving the judge’s instructions and attempting to complete the verdict form based on those instructions, may have thought that they could only consider those mitigating circumstances which they unanimously found to exist. 486 U.S. at 376-77. If the jurors were led to believe that they could not each individually consider certain mitigating circumstances because there was not unanimous agreement as to the existence of those circumstances, then “some jurors were prevented from considering ‘factors which may call for a less severe penalty,’ Lockett v. Ohio, 438 U.S., at 605, and petitioner’s sentence cannot stand.” 486 U.S. at 376. See also Frey v. Fulcomer, 132 F.3d 916, 920 (3rd Cir. 1997), cert. denied 524 U.S. 911 (1998).
The decision in Mills was reaffirmed in McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369, 110 S. Ct. 1227 (1990). In McKoy, the Court held that it is unconstitutional to require a mitigating circumstance to be found unanimously. 494 U.S. at 443-44.
In the case we now consider, the parties and the court during an instruction conference discussed Mills in the attempt to satisfy its requirement. The parties agreed to the following instruction, which became Instruction No. 12:
“It is not necessary that all jurors agree upon particular facts and circumstances in mitigation of punishment.
“If you as a juror determine that there are facts or circumstances in mitigation of punishment sufficient to outweigh the evidence of aggravating circumstances, then you must not return a verdict of death.”
Kleypas advances the following synopsis in his brief before this court:
“In order to clarify this cryptic instruction [Instruction No. 12], defense counsel proposed that the jury be charged:
‘Each individual juror shall weigh the aggravating circumstance found unanimously to exist against any mitigating circumstances found by the that individual juror to exist/
The trial court denied this instruction.”
This synopsis is misleading. Kleypas proffered his instruction not to “clarify the [previous] cryptic instruction” but, rather, prior to the adoption of Instruction No. 12. After the parties agreed on Instruction No. 12, the court denied Kleypas’ requested instruction because it was already covered under Instruction No. 12. Kleypas made no objection to this denial. Thus, instead of objecting to Instruction No. 12 as claimed in his brief, Kleypas agreed and helped fashion the language of Instruction No. 12 to replace his proposed instruction.
Because of the discussion and holding set forth in issue 23 that it is constitutionally impermissible to mandate the death penalty where the jury finds that the aggravating and mitigating circumstances are in equipoise, it is likewise necessary to disapprove and hold improper the language of the second sentence of instruction No. 12 that states: “If you as a juror determine that there are facts or circumstances in mitigation of punishment sufficient to outweigh the evidence of aggravating circumstances, then you must not return a verdict of death.”
This language erroneously instructs the juiy that before it could not return a verdict of death it would have to find the mitigating facts or circumstances outweigh the aggravating facts and circumstances.
The first sentence of instruction No. 12, “It is not necessary that all jurors agree upon particular facts and circumstances in mitigation of punishment,” is a correct statement of law and satisfies the Mills and McKoy requirements. Whether this sentence goes far enough by itself can only be determined by examining the other instructions relating to consideration by the jury of the aggravating and mitigating facts and circumstances. But, any instruction dealing with the consideration of mitigating circumstances should state (1) they need to be proved only to the satisfaction of the individual juror in the juror’s sentencing decision and not beyond a reasonable doubt and (2) mitigating circumstances do not need to be found by all members of the jury in order to be considered in an individual juror’s sentencing decision.
The three cases cited by Kleypas and amicus curiae the National Association of Criminal Defense Lawyers, Frey v. Fulcomer, 132 F.3d 916, 922-23 (3d Cir. 1997), cert. denied 524 U.S. 911 (1998); Kordenbrock v. Scroggy, 919 F.2d 1091 (6th Cir. 1990) (en banc); and Kubat v. Thieret, 867 F.2d 351 (7th Cir. 1989), are claimed to show that Instruction No. 8 (unanimous beyond a reasonable doubt burden on the State as to aggravating circumstances), Instruction No. 12, and Instruction No. 15 (verdict form provision discussed in issue No. 36) emphasize the requirement of unanimity regarding the aggravating circumstances while failing to clarify the distinction between the standard for mitigating and aggravating circumstances results in a jury likely to believe it must be unanimous in its finding of mitigating circumstances. This was clearly not the import of the first sentence of Instruction No. 12, but we briefly discuss the holdings of the three cases cited to us.
In Frey, the court instructed that jury: “The Crimes Code provides that the verdict must be a sentence of death if the jury unan imously finds at least one aggravating circumstance and no mitigating circumstance, or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances.” 13 F.3d at 922. The Third Circuit Court of Appeals found that it was reasonably likely that the jury would conclude from this instruction that it had to unanimously find mitigating circumstances, especially where other instructions expressly referenced unanimous requirement for aggravating circumstances but made no mention that the requirement for mitigating circumstances was different. 132 F.3d at 922-24.
In Kordenbrock, the trial court expressly instructed the jury that aggravating circumstances had to be found beyond a reasonable doubt but made no mention of the standard for mitigating circumstances. The Sixth Circuit Court of Appeals, en banc, found that this violated Mills because it created a likelihood that the jurors would interpret the instructions to require them to also find mitigating circumstances beyond a reasonable doubt. 919 F.2d at 1109-10. Similarly, in Kubat, the court’s instructions emphasized unanimity and did not inform the jurors that mitigating circumstances did not have to be found beyond a reasonable doubt, thus violating Mills. 867 F.2d at 372-73.
In contrast to these three cases, the jury in this case was specifically instructed by the first sentence of instruction No. 12 that unanimity was not required with regard to mitigating circumstances. Frey, Kordenbrock, and Kubat do not support Kleypas’ argument.
While we disapprove of the second sentence of Instruction No. 12, the first sentence of the agreed-upon instruction was sufficient to address the concern that the jury might believe that unanimity was required as to mitigating circumstances. It explicitly instructed the jury that it need not be unanimous as to mitigating facts and circumstances.
As a result, we hold there was no error in failing to give Kleypas’ requested instruction, the first sentence of Instruction No. 12 is approved, and the second sentence of Instruction No. 12 is disapproved.
Issue 41. Failure to Inform Jury of Sentences that Might be Imposed for Other Convictions
Kleypas argues that the trial court erred in failing to instruct the jury as to the length of the sentence that would be imposed for the murder absent a death sentence, and also erred in failing to instruct the jury that he would be sentenced for two additional felonies which could be run consecutively to the murder conviction. Kleypas also argues that the trial court should have informed the jury as to the exact total term of imprisonment to which he would have been sentenced absent a death sentence.
In Simmons v. South Carolina, 512 U.S. 154, 168-71, 129 L. Ed. 2d 133, 114 S. Ct. 2187 (1994), the United States Supreme Court held that it was unconstitutional to deny the defendant’s request to instruct the jury that he would not be eligible for parole where the State had attempted to argue that the defendant should be put to death because of his future dangerousness. The Court found that the denial of such an instruction effectively prevented the defendant from rebutting the State’s argument. 512 U.S. at 161-62.
The problem with Kleypas’ argument, at least with regard to the length of the sentence that would be imposed for the murder absent a death sentence, is that Kleypas’ counsel objected to just such an instruction at trial. The trial court offered to give an instruction that Kleypas would be sentenced to life in prison with parole eligibility in 25 years or, at the discretion of the judge, might be sentenced to the hard 40. The defense felt that there was really no possibility of life with parole eligibility in 25 years and refused to have the jury instructed on the subject. Thus, any error of the court on this subject was invited by Kleypas and cannot now be complained of on appeal. See State v. Borman, 264 Kan. 476, 480, 956 P.2d 1325 (1998).
Kleypas also argues that the jury should have been instructed on the sentences he would receive for his other felony convictions. In support of this contention, he cites cases from other jurisdictions which he claims have done so: State v. Loftin, 146 N.J. 295, 680 A.2d 677 (1996); Clark v. Tansy, 118 N.M. 486, 882 P.2d 527 (1994); and Berry v. State, 575 So. 2d 1 (Miss. 1990). However, Clark and Berry do not substantively support Kleypas’ argument. Clark stands only for the proposition that the jury be informed as to the length of incarceration facing the defendant either by way of a defendant’s rebuttal arguments or by instruction from the court if the defendant so requests. 118 N.M. at 492-93. See Simmons, 512 U.S. at 168-69. Berry holds that where, the defendant’s prior crimes will designate him a habitual criminal and thus make him ineligible for parole, the habitual criminal hearing should be held and the jury advised of this fact before deliberations on the death sentence begin. 575 So. 2d at 13-14.
Loftin, along with State v. Martini, 131 N.J. 176, 619 A.2d 1208 (1993), cert. denied 519 U.S. 1063 (1997), set up a system in New Jersey in which the court is required to instruct on the potential sentences a defendant will receive for convictions arising from the same trial as the capital-murder conviction. Martini, 131 N.J. at 313. Courts in New Jersey are also required to instruct the jury if there is a reasonable likelihood that consecutive sentences will be imposed on the non-capital counts. Loftin, 146 N.J. at 372.
Instructions such as those required in New Jersey are not mandated by Simmons. See 512 U.S. at 168-71. Further, the length of incarceration to be served by the defendant before parole eligibility is not a mitigating circumstance under the Eighth Amendment because it not a fact about the defendant’s character or background or about the circumstances of the offense. Kansas law does not provide for a system such as that in New Jersey, and we decline to impose such a system sua sponte. We conclude that the trial court did not err in failing to instruct the jury on the sentences which Kleypas would receive for his additional felony convictions.
In the absence of a request, the trial court has no duty to inform the jury in a capital-murder case of the term of imprisonment to which a defendant would be sentenced if death were not imposed. Where such an instruction is requested, the trial court must provide the jury with the alternative number of years that a defendant would be required to serve in prison if not sentenced to death. Additionally, where a defendant has been found guilty of charges in addition to capital murder, the trial court upon request must provide the jury with the possible terms of imprisonment for each additional charge and advise the jury that the determination of whether such oiher sentences shall be served consecutively or concurrently to each other and the sentence for the murder conviction is a matter committed to the sound discretion of the trial court.
Issue 42. Failure to Give Limiting instruction Regarding Inconsistency Between Heinous, Atrocious, or Cruel Manner Aggravating Circumstance and Avoiding Arrest Aggravating Circumstance
Kleypas argues that two of the aggravating circumstances advanced by the State in his separate sentencing proceeding are potentially inconsistent and, therefore, required the trial court to instruct the jury on the inconsistency. He argues that the following two circumstances are inconsistent in that they both address the motive for the killing: “The defendant committed the crime for the defendant’s self or another for the purpose of receiving money or any other thing of monetaiy value,” K.S.A. 21-4625(3), and “The defendant committed the crime in an especially heinous, atrocious or cruel manner,” K.S.A. 21-4625(6).
Kleypas cites two cases to support his argument for the necessity of the limiting instruction: State v. Cooper, 151 N.J. 326, 700 A.2d 306 (1997), and State v. Barreras, 181 Ariz. 516, 892 P.2d 852 (1995).
In Cooper, the aggravating factors in the penalty phase were that (1) the crime was depraved and senseless and (2) the crime was committed to avoid arrest. The court found that these two factors were inconsistent, as one assumed no motive existed, while the other set forth a motive. 151 N.J. at 382. Under the circumstances, Cooper concluded that the trial court should not have submitted both factors but also concluded a limiting instruction that the jury could not find both factors was sufficient to cure the error. 151 N.J. at 382-84. In Barreras, the trial court found that the murder had been committed in an especially heinous and depraved manner because, in part, the murder was senseless and the murder was made to eliminate the victim as a witness. The Arizona Supreme Court concluded that the witness elimination aggravating factor was not supported by the evidence but also expressed its doubt that the two factors could exist at the same time. 181 Ariz. at 523.
Cooper and Barreras involve aggravating factors relating to the motive of the killing, viz., that the killing was senseless and that the killing was made to avoid arrest or eliminate the victim. In both cases, the aggravating factors were clearly inconsistent. However, neither case supports Kleypas’ argument.
In Kansas, the heinous, atrocious, or cruel manner aggravating circumstance is not targeted toward the motive for the killing, i.e., that the killing was senseless but, rather, its focus is on the manner in which the killing was committed. We conclude that the alleged inconsistency does not exist under the facts of this case. No limiting instruction was necessary. The State was not relying on Kleypas’ motive for the killing to establish the heinous, atrocious, or cruel manner aggravating circumstance. Instead, the State relied on the physical and mental anguish suffered by the victim to establish that aggravating circumstance. Kleypas’ argument fails.
Issue 43. Prosecutorial Misconduct in the Penalty Phase
Kleypas alleges that certain conduct by the State during the penalty phase, as well as numerous statements and arguments during its closing argument, constituted prosecutorial misconduct. According to Kleypas, the prosecutorial misconduct denied him a fair sentencing proceeding and requires that his sentence be overturned. Although we have already determined that Kleypas’ sentences must be vacated and the matter remanded for a new sentencing hearing, we choose to address the claimed errors with regard to prosecutorial misconduct in detail. Because this is the first death penalty case in Kansas under the new statute, it is important to highlight the standard of review for claimed misconduct during the penalty phase and to educate both prosecutors and defense attorneys as to the standard to which they will be held in both their conduct and comments during the penalty phase.
Standard of Review
The purpose of a separate sentencing proceeding in Kansas is “to determine whether the defendant should be sentenced to death.” K.S.A. 21-4624(a). We cannot overemphasize the critical importance of such a determination to the victims, the defendant, and to all Kansas citizens. Because of the life and death nature of the proceedings, prosecutors have a heightened duty to refrain from conduct designed to inflame the passions or prejudices of the jury. The process and proceedings by which the State imposes a death sentence must be fair and free of prejudicial error consistent with the United States Constitution as interpreted by the United States Supreme Court.
The standard of review upon a claim of prosecutorial misconduct during the penalty phase of a capital murder trial is similar to the standard applied in the guilt phase. Yet, there are subtle differences which need to be identified before we consider the specific allegations of the defendant.
In all cases, the standard of review in determining whether alleged improper statements made by the prosecutor during closing argument is a two-step process: First, we must determine whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. Second, we must determine whether the remarks constituted plain error, that is, whether the comments were so gross and flagrant as to prejudice the jury against the accused and deny him a fair trial. State v. McCorkendale, 267 Kan. at 263, 278-79, 979 P.2d 1239 (1999).
In our determination of whether the prosecutor’s remarks were so gross and flagrant as to prejudice the jury and deny the defendant his constitutional right to a fair trial, we apply the harmless error analysis for federal constitutional errors, as stated by the United States Supreme Court in Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967). A constitutional error may be declared harmless where the State proves beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. 386 U.S. at 24. Although the language used in Kansas “Whether the reviewing court is able to find beyond a reasonable doubt that the error, when viewed in light of the record as a whole, had little, if any, likelihood of changing the result of the trial” is somewhat different than the language used in Chapman, we have held that our standard is essentially the same as expressed in Chapman. See State v. Fleury, 203 Kan. 888, 893, 457 P.2d 44 (1969) (adopted Chapman test for constitutional harmless error and stated that it occurs “where the error or defect had little, if any, likelihood of having changed the result of the trial”). See, e.g., McCorkendale, 267 Kan. at 279; State v. Lumley, 266 Kan. 939, 959, 976 P.2d 486 (1999); State v. Zamora, 247 Kan. 684, 690, 803 P.2d 568 (1990); State v. Johnson, 231 Kan. 151, 159, 643 P.2d 146 (1982).
The United States Supreme Court has approved the use of the Chapman harmless error analysis to analyze trial errors occurring during the penalty phase of capital murder trials. See Satterwhite v. Texas, 486 U.S. 249, 100 L. Ed. 2d 284, 108 S. Ct. 1792 (1988); Clemons v. Mississippi, 494 U.S. 738, 108 L. Ed. 2d 725, 110 S. Ct. 1441 (1990). However, the Court has also noted that application of the analysis is somewhat more complicated than in non-death cases or in the guilt phase of a capital trial. In Sattenohite, the Court stated:
“It is important to avoid error in capital sentencing proceedings. Moreover, the evaluation of the consequences of an error in the sentencing phase of a capital case may be more difficult because of die discretion that is given to the sentencer. Nevertheless, we believe that a reviewing court can make an intelligent judgment about whether the erroneous admission of psychiatric testimony might have affected a capital sentencing jury.” 486 U.S. at 258.
Similarly, in Clemons, the Court stated:
“Nothing in this opinion is intended to convey the impression that state appellate courts are required to or necessarily should engage in reweighing or harmless-error analysis when errors have occurred in a capital sentencing proceeding. Our holding is only that such procedures are constitutionally permissible. In. some situations, a state appellate court may conclude that peculiarities in a case make appellate reweighing or harmless-error analysis extremely speculative or impossible. We have previously noted that appellate courts may face certain difficulties in determining sentencing questions in the first instance. [Citation omitted]. Nevertheless, that decision is for state appellate courts, including the Mississippi Supreme Court in this case, to make.” 494 U.S. at 754.
Several legal commentators have also noted that the application of the harmless error analysis is more difficult and limited in the penalty phases of a capital murder trial. See McCord, Is Death “Different” for Purposes of Harmless Error Analysis? Should It Be?: An Assessment of United States and Louisiana Supreme Court Case Law, 59 La. Law Rev. 1105 (1999); Mitchell, The Wizardry of Harmless Error: Brain, Heart, Courage Required When Reviewing Capital Sentences, 4 Kan. J.L. & Pub. Pol’y 51 (1994); Carter, Harmless Error in the Penalty Phase of a Capital Case: A Doctrine Misunderstood and Misapplied, 28 Ga. L. Rev. 125 (1993). Professor Carter noted that the difficulty arises because of the difference in judgment that a jury must exercise during the penalty phase as opposed to the guilt phase, and the corresponding greater discretion:
“In contrast [to the guilt phase, in which the factfinder must reach a decision as to whether certain facts exist], the sentencer in a capital case must first find whether certain facts exist and then apply a value judgment to those facts. The judge or jury in the penalty phase must decide whether the evidence is convincing that an aggravating circumstance exists and whether any mitigating circumstances exist. These assessments by the judge or jury are essentially comparable to the factfinder’s task in the guilt phase in deciding if the elements of the crime exist. The sentencer, however, is asked to do more. The sentencer is asked to take the facts found — the aggravating and mitigating circumstances — and balance them against each other. The balancing is virtually unguided. The sentencer must make a value judgment whether one group of facts (aggravating circumstances) is greater, the same as, or less than another group of facts (the mitigating circumstances).” 28 Ga. L. Rev. at 148-49.
Further, the applicability of what is commonly referred to as the “overwhelming evidence test,” as stated by the United States Supreme Court in Harrington v. California, 395 U.S. 250, 23 L. Ed. 2d 284, 89 S. Ct. 1726 (1969), is more difficult and complex in addressing assigned errors occurring during the penalty phase. In Harrington, the Court found that the consideration of the overwhelming nature of the defendant’s guilt was a valid consideration under Chapman and that harmless error may be found where the evidence against the defendant was “overwhelming,” although courts should be cautioned from giving too much emphasis to this consideration. 395 U.S. at 254. The overwhelming nature of the evidence is also a consideration in the Kansas version of the Chapman harmless error analysis. See State v. Follin, 263 Kan. 28, 45, 947 P.2d 8 (1997) (stating that one factor to be considered in determining whether a new trial should be granted because of prosecutorial misconduct is whether the evidence against the defendant was so overwhelming that there was little or no likelihood the prosecutor’s prejudicial remarks changed the result of the trial).
In determining whether the claimed prosecutorial misconduct in the penalty phase of the trial had little or no likelihood of changing the jury’s verdict, the court is obliged to consider the evidence in light of the record as a whole. See McCorkendale, 267 Kan. at 279. In so considering, the court must necessarily determine whether the evidence in favor of the jury’s verdict is so overwhelming that the error had little or no likelihood of changing the jury’s verdict. See Carter, Harmless Error in the Penalty Phase of a Capital Case: A Doctrine Misunderstood and Misapplied, 28 Ga. L. Rev. at 134-38. Thus, one way in which the misconduct may be found to be harmless is where an appellate court finds that the evidence in favor of the existence of the aggravating circumstances, and the evidence that these aggravating circumstances outweigh the mitigating circumstances, is so overwhelming that the misconduct had little or no likelihood of changing the jury’s verdict.
It must be noted that in Kansas, the jury is not required to reveal what mitigating circumstances it found to exist. See K.S.A. 21-4624(e) (requiring the jury to designate in writing the aggravating circumstances it found to exist, but not requiring the same for the mitigating circumstances). Thus, application of the “overwhelming evidence test” as a component of the Chapman harmless error analysis assumes that all of the mitigating circumstances claimed by the defendant exist. The appellate court’s decision with regard to the overwhelming nature of. the evidence will depend upon whether the court may say that the evidence that the aggravating circumstances outweigh the mitigating circumstances is so overwhelming that the misconduct had little or no likelihood of changing the jury’s verdict.
Thus, the standard of review and the ultimate question that must be answered with regard to whether prosecutorial misconduct in the penalty phase of a capital trial was harmless is whether the court is able to find beyond a reasonable doubt that the prosecutorial misconduct, viewed in the light of the record as a whole, had little, if any, likelihood of changing the jury’s ultimate conclusion regarding the weight of the aggravating and mitigating circum stances. In this determination, the overwhelming nature of the evidence is a factor to be considered, although its impact is limited. Also, in making the determination as to whether an error was harmless, it is important to recognize that the question for the reviewing court is not what effect the constitutional error might generally be expected to have upon a reasonable jury but, rather, what effect it had upon the actual verdict in the case at hand. Sullivan v. Louisiana, 508 U.S. 275, 279, 124 L. Ed. 2d 182, 113 S. Ct. 2078 (1993). “The inquiry, in other words, is not whether, in a trial that occurred without the error, a [verdict for death] would surely have been rendered, but whether the [death verdict] actually rendered in this trial was surely unattributable to the error.” 508 U.S. at 279.
Further, even if instances of prosecutorial misconduct are harmless error in and of themselves, their cumulative effect must be analyzed. See State v. Valdez, 266 Kan. 774, 802, 977 P.2d 242 (1999) (noting that cumulative errors may be so great as to require reversal). For a cumulative error analysis, the focus is on the net prejudicial effect the total prosecutorial misconduct had on the jury’s ultimate verdict. The question is whether the total effect of the cumulative misconduct found to exist, viewed in light of the record as a whole, had little, if any, likelihood of changing the jury’s ultimate conclusion regarding the weight of the aggravating and mitigating circumstances.
With these standards in mind, we now turn to the specific arguments raised by the defendant:
Prosecutorial Misconduct During Examination of Witnesses
As part of his mitigating evidence, Kleypas brought forth expert witness testimony designed to show as a mitigating circumstance that he would do well in a structured prison setting. Kleypas’ arguments concern certain questions asked by the prosecutor in cross-examining these witnesses.
A. Cross-Examination of Dr. Othmer
Dr. Othmer, a psychologist, testified that he had diagnosed Kleypas as suffering from several paraphilias or sexual fantasies involving either innate objects or nonconsenting partners. Dr. Othmer testified that Kleypas could not control his paraphilias and that alcohol would lead to an increase in “acting out” these paraphilias. According to Dr. Othmer, there was no indication in Kleypas’ history that he acted on his paraphilias while in prison. Dr. Othmer opined that this was because the triggers for the paraphilias, which were females, alcohol, and drugs, were missing. Dr. Othmer testified that with those triggers removed, the likelihood of Kleypas causing problems in prison was extremely low.
During cross-examination, the prosecutor asked whether a weaker male could be a triggering device for someone with Kleypas’ problem if the person had sexual identification problems. Dr. Othmer answered that he saw no indication of that in Kleypas. The prosecutor then said: “I understand but the question is someone with this type of paraphilia who has a sexual identification problem, could a weaker male be a triggering device?” Dr. Othmer answered: “Theoretically”. Defense counsel objected but was overruled. The prosecutor then attempted to rephrase the question, an objection from defense counsel was sustained, and the matter was dropped.
Kleypas contends that the prosecutor was improperly asking the question regarding whether a weaker male could be a trigger for a paraphilia in an attempt to insinuate that Kleypas would sexually assault weaker males in prison. He argues that the prosecutor lacked a good faith basis for this question. There is really no question that the prosecutor was indeed attempting to rebut Kleypas’ evidence of probable good behavior in prison by trying to establish that Kleypas would be a danger to weaker males due to his paraphilia. The only question is whether the prosecutor had a good faith basis for asking such a question.
In State v. Cravatt, 267 Kan. 314, 330, 979 P.2d 679 (1999), we noted that as a general rule, counsel may not make assertions of fact in the form of questions to a witness absent a good faith basis for believing the asserted matters to be true. See State v. Wilkins, 269 Kan. 39, 45, 5 P.3d 520 (2000); State v. Marble, 21 Kan. App. 2d 509, 512, 901 P.2d 521, rev. denied 258 Kan. 861 (1995); ICRPC 3.4(e) (2001 Kan. Ct. R. Annot. 406); Graham, Evidence: Text, Rules, Illustrations and Problems, p. 436 (2d ed. 1989). In order for the prosecutor to have a good faith basis for asking the question that he asked on cross-examination, the prosecutor was required to have a good faith basis for believing that (1) Kleypas had a sexual identification problem and (2) a weaker male would indeed be a triggering device for a person with Kleypas’ paraphilias and a sexual identification problem.
However, Kleypas did not object to the prosecutor’s question on the basis of lack of a good faith belief. We underscored the necessity for such an objection in Cravatt: “An overruled objection at trial would have provided a basis for review. It would also have required the State to proffer its basis for the above questions.” 267 Kan. at 330. While it is true that the State must be ready to establish the good faith basis for its questions, its responsibility to do so is triggered by an objection which asks it to do so, and where there is no such objection, the duty does not exist. See Wilkins, 269 Kan. at 45; Cravatt, 267 Kan. at 330.
If the prosecutor had a good faith basis for believing that Kleypas had a sexual identification problem and that a weaker male might serve as a triggering device for someone with Kleypas’ paraphilias and a sexual identification problem, the questions would have been highly relevant to the credibility of Dr. Othmer’s opinion that Kleypas would do well in prison. The failure of the defendant to object and to trigger the prosecutor’s proffer of a good faith basis precludes a finding of error on this issue.
Of more concern to this court is another question asked by the prosecutor during its cross-examination of Dr. Othmer. The prosecutor noted that Dr. Othmer had said that alcohol was a triggering device. The prosecutor then asked if it was true that the prison records indicated that Kleypas had tested positive for alcohol. Dr. Othmer indicated that he had not been aware of such a specific incident but Larned records had indicated that Kleypas had previously “had a drinking problem in a controlled environment.” At this point, the prosecutor asked: “So why did you tell us then that he did not have any indications of being around these triggering devices?” Defense counsel objected but was overruled. The prosecutor then resubmitted the question at which point defense counsel again objected, arguing that there was no good faith basis for the question. Defense counsel noted that the particular incident to which the prosecutor referred to did not happen in prison but instead occurred while Kleypas was on work release in Missouri and was working at a bar. The prosecutor then explained: “Your Honor, the point is the defendant was in prison and in prison he got on work release and he goes out and he has access to alcohol. This is — he says the doctor made the statement that he has no access while he’s in prison and he clearly does.” The trial court sustained defense counsel’s objection.
With his questioning, the prosecutor was clearly trying to discredit Dr. Othmer’s opinion that the triggers for Kleypas’ paraphilias would be removed in the prison setting by inferring that Kleypas had access to alcohol in prison and bringing up the point that Kleypas had tested positive for alcohol was in prison. The problem is, as the prosecutor clearly knew, that Kleypas did not test positive for alcohol in prison but rather tested positive while he was on work release. This attempted cross-examination was made without a good faith basis and was improper.
B. Cross-Examination of Dr. Gentry
The next point about which Kleypas complains took place during the cross-examination of Dr. Gerald Gentry, one of Kleypas’ psychiatric experts. On redirect examination, Dr. Gentry testified that Kleypas had suffered some mental damage from the “anticipation or fear of pain” which accompanied him watching the beatings of his brothers by his father. On recross, prosecutor Barry Disney stated: “So you would agree that the anticipation of fear or the anticipation of harm can cause severe mental distress?” When Gentry replied that it would, Disney then stated: “So would you care to venture an opinion as to the amount of severe mental distress that [C.W.] was feeling when the defendant was in her apartment for one and a half to three hours?” Defense counsel objected and the trial court stated: “I think it is beyond the scope of redirect, sustained.”
It is impossible to tell exactly what the prosecutor’s motive in asking this question was. It was either, as Kleypas suggests, an attempt to remind the jury of C.W.’s pain and suffering in order to inflame the jury or it was an attempt by the prosecutor to gamer additional testimony from a defense witness to support the State’s alleged aggravating circumstance that the murder was committed in an especially heinous, atrocious, or cruel, manner. In either event, the question itself was improper. We caution that a prosecutor who outside the scope of the examination seeks to gain an advantage with a question that arguably is intended to inflame and impassion the jury is perilously close to committing reversible error.
C. The Prison Checklist
Dr. James Park testified as an expert witness regarding Kleypas’ adjustment in prison. He testified that he had reviewed the Missouri Department of Corrections files and records on Kleypas and found no evidence of sexual assaults and violence. In his opinion, if sentenced to prison, Kleypas would once again be a good prisoner. On cross-examination, the prosecutor asked Dr. Park about a correctional adjustment checklist that was in Kleypas’ Missouri prison records. The checklist contained a list of behaviors and was completed by a prison official circling the numbers which corresponded to the behaviors exhibited by the inmate. Kleypas’ checklist had circled the attributes “victimizes weaker inmates,” “an agitator about race,” “continually tries to con staff, “plays staff against one another,” and “tries to form a [clique].” The prosecutor asked Dr. Park to verify that those attributes were circled and then referred to them in closing argument. Defense counsel objected to the use of the checklist but was overruled.
Kleypas contends that the prosecutor should not have been allowed to use the checklist in cross-examination to establish his bad conduct in prison because the allegations were unreliable and uncorroborated and, further, that a limiting instruction should have been given informing the jury that the evidence in the checklist could only be used for the purpose of impeaching the credibility of the witness, not as evidence of Kleypas’ bad conduct in prison. In support of these contentions, Kleypas relies on our decision in State v. Hinton, 206 Kan. 500, 479 P.2d 910 (1971), as well as a New Jersey case, State v. Rose, 112 N.J. 454, 548 A.2d 1058 (1988).
Hinton stands for the proposition that it is improper to admit evidence of bad character as fact during the cross-examination of a defendant’s character witness. Instead, such evidence should only be admitted to affect the credibility of the character witness by asking whether the character witness is familiar with such evidence. 206 Kan. at 506. This cross-examination is sanctioned as a test of the witness’ credibility under the theory that if the witness has a familiarity with the evidence, the witness’ opinion as to the defendant’s good character may not be sound or in good faith, and if the witness has no familiarity with the evidence then the witness may not actually be familiar with the defendant. See 206 Kan. at 506.
We stated in Hinton:
“The trial judge in determining whether to allow the prosecuting attorney to cross-examine the defendant’s character witness, when challenged by the defendant, should conduct a preliminary inquiry out of the presence of the jury, and he should satisfy himself:
“(1) That there is no question as to the fact of the subject matter of the rumor, that is, of the previous arrest, conviction or other pertinent misconduct of the defendant;
“(2) That a reasonable likelihood exists that the previous arrest, conviction or other pertinent misconduct would have been bruited about the neighborhood or community prior to the alleged commission of the offense on trial;
“(3) That neither the event nor conduct, nor the rumor concerning it, occurred at a time too remote from the present offense;
“(4) That the earlier event or misconduct and the rumor concerned the specific trait involved in the offense for which the accused is on trial; and
“(5) That the examination will be conducted in the proper form, that is, ‘Have you heard,’ etc., not ‘Do you know.’ [Citations omitted.]
“If the conclusion is reached to allow the interrogation, the jury should be informed of its exact purpose, either at the conclusion of the cross-examination of the character witness, or in the charge made to the jury at the close of the case.” 206 Kan. at 508-509.
Unlike the situation in our case, Hinton dealt with the guilt or innocence of the defendant rather than the penalty to be imposed. In the penalty phase of a capital proceediiig where a defendant presents evidence of a mitigating circumstance, the prosecution is permitted to cross-examine defense witnesses as to relevant facts and to introduce relevant evidence in order to rebut the existence of the mitigating circumstance. See Rose, 112 N.J. at 502-03; Com. v. Ford, 539 Pa. 85, 105, 650 A.2d 433 (1994); State v. Lord, 117 Wash. 2d 829, 890-95, 822 P.2d 177 (1991). It is clear by the manner in which the testimony was elicited and the manner in which it was referred to in closing arguments that the prosecutor was using the information to rebut Kleypas’ proposed mitigating factor that he would function well in prison rather than attempting to use the information as evidence that the defendant was a bad person and should be sentenced to death.
The checklist used to impeach Dr. Park was included in the documents which Dr. Park relied on in forming his opinion as to Kleypas’ amenability to prison. As a result, it was proper for the prosecutor to cross-examine Dr. Park as to evidence without further establishing its accuracy. See Rose, 112 N.J. at 500-01 (incidents relied on by expert in expressing opinion a proper subject for cross-examination, subject to limiting instruction). Thus, Kleypas’ argument regarding the need for corroboration of the truth of the checklist fads.
However, there is a question as to whether the trial court was obligated to give a juiy instruction stating that the information in the checklist could be considered only for the purpose of rebutting the mitigating circumstance that Kleypas could function well in prison. The court in Rose found a need for such an instruction, noting:
“In the penalty phase of a capital case, the function of the jury has been shaiply defined by the Legislature. The jury must determine if the State has proved beyond a reasonable doubt the existence of any aggravating factors, and if the defendant has proved the existence of any mitigating factors. The jury must then weigh only the aggravating factors against only the mitigating factors. N.J.S.A. 2C:11-3c(3). The jury is not permitted, in its weighing process, to add other evidence of defendant’s past conduct to the weight it assigns to the aggravating factors, nor to consider other evidence of defendant’s past conduct, except to the extent offered to rebut mitigating factors, as detracting from the weight it assigns to the mitigating factors.” 112 N.J. at 507-08.
The Rose court stated that under New Jersey law, where relevant evidence is admissible for one purpose and is inadmissible for an other purpose, the judge is required to restrict the evidence to its proper scope and instruct the jury accordingly. The court found that it was incumbent upon the judge to instruct the jury that the information could be used only to rebut the proffered mitigating circumstance, not as additional aggravating evidence. 112 N.J. at 506-08. Further, the court found that it did not matter whether the defendant requested such an instruction, as the information, which included the defendant’s past misconduct in high school, the army, and jail, in addition to his physical acts of violence against former girlfriends and his racial reason for buying a shotgun, was so inflammatory as to require such an instruction sua sponte. 112 N.J. at 505-07.
The United States Constitution does not prohibit the sentencer’s consideration during the penalty phase of a capital murder trial of information not directly related to aggravating or mitigating factors as long as that information is relevant to the character of the defendant or the circumstances of the crime. Barclay v. Florida, 463 U.S. 939, 967, 77 L. Ed. 2d 1134, 103 S. Ct. 3418 (1983) (Stevens, J., concurring). Therefore, the question is whether under Kansas law such a limiting instruction is required.
As in New Jersey, Kansas law limits the consideration of aggravating circumstances to those listed by the State, and the jury is not permitted to use evidence of other bad acts by the defendant as “nonstatutory aggravating circumstances.” The pattern jury instructions for Kansas make this clear by instructing the jury: “In the determination of sentence, you may consider only those aggravating circumstances set forth in this instruction.” PIK Crim. 3d 56.00-C. Such an instruction was given to the jury in this case. This instruction adequately informs the jury that it may not use evidence which rebuts a mitigating circumstance as an aggravating circumstance.
Of further significance is the difference between New Jersey and Kansas with regard to the duty of the judge to instruct on evidence which is admissible for one purpose but not for another. The New Jersey Supreme Court in Rose found that a limiting instruction was necessary in light of its Evidence Rule 6, which provides: “When relevant evidence is admissible as to one party or for one purpose and is inadmissible as to other parties or for another purpose, the judge shall restrict the evidence to its proper scope and instruct the jury accordingly.” 112 N.J. at 507.
In comparison, Kansas law states: “When relevant evidence is admissible as to one party or for one purpose and is inadmissible as to other parties or for another purpose, the judge upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” (Emphasis added.) K.S.A. 60-406.
We have held that although a trial judge is required to give such an instruction where applicable on request of one of the parties, the failure to do so when not requested is not error unless such failure is clearly erroneous. State v. Lolar, 259 Kan. 682, 687-88, 914 P.2d 950 (1996); State v. Knowles, 209 Kan. 676, 679-80, 498 P.2d 40 (1972).
We conclude that the court was not required to instruct the jury regarding the applicability of the evidence where Kleypas failed to request such an instruction. Under the pattern instructions in Kansas, the juiy is explicitly instructed that it is to consider only the aggravating circumstances listed. The only statutory aggravating circumstance which even remotely concerns a defendant’s history is that the defendant was previously convicted of a felony in which the defendant inflicted great bodily harm, disfigurement, dismemberment, or death on another. See K.S.A. 21-4625(1). The remaining statutory aggravating circumstances concern characteristics of the crime and we conclude that it is very unlikely that a jury would assign greater weight to those aggravating circumstances because of a defendant’s past history. It is also unlikely that the jury would use this information to discount the defendant’s proffered mitigating circumstances other than the mitigating circumstance which the information specifically rebuts. The jury is presumed to follow the instructions of the court. State v. Tyler, 251 Kan. 616, Syl. ¶ 13, 840 P.2d 413 (1992).
Another problem identified by Kleypas regarding the use of the checklist is that according to Kleypas, he had shown that the information was incorrect. Kleypas argues that the trial court erred in denying his motion for new trial given this showing. In his motion for a new trial, Kleypas submitted an affidavit from a Missouri prison officer. Mary Countryman was the officer who originally completed the checklist in 1988. In her affidavit, Countryman stated the following:
“2. I was familiar with Gary W. Kleypas when he was an inmate and I was a correctional officer at Fordland Correctional Center.
“3.1 saw no indication that Mr. Kleypas was dangerous to other inmates. Specifically I saw no indication of assaultive or homicidal behavior on his part.
“4. Mr. Kleypas seemed to get along with everyone he had contact with.
“5.1 saw no indication that Mr. Kleypas was racist or engaged in racist activities.
“6. I do not know why the attached form was filled out the way it was.
“7. Nobody from the prosecution in the State of Kansas v. Gary W. Kleypas contacted me at any time to discuss the attached form.”
Contrary to Kleypas’ assertion, the affidavit does not prove that the information contained in the checklist was false. While the affidavit does contradict the checklist as to the various issues, it provides no explanation as to why the checklist was filled out in the manner in which it was. Therefore, while the affidavit affects the credibility of the checklist, it does not negate the checklist. Rather, it establishes Countryman’s view of the events 9 years after the checklist was filled out.
A conviction based on perjured or false evidence is a violation of due process even in cases where the perjury or false evidence was not induced by the prosecution. See Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959). Such a rule should be especially applicable to death penalty proceedings. However, the affidavit does not establish that the evidence was in fact false and, therefore, the trial court did not err in denying Kleypas’ motion for new trial on this basis.
D. Prison Conditions
Kleypas argues that the prosecutor committed misconduct through cross-examination of a defense witness by violating the terms of the trial court’s order in limine regarding prison conditions. Prior to trial, the trial court ruled upon the motion of defense counsel that neither side could bring up issues relating to prison conditions, although Kleypas would be allowed to present evidence regarding his amenability to prison and the State would be allowed to rebut that evidence.
Joe Haggard, a fire safety specialist with the Missouri Department of Corrections, testified that he had supervised Kleypas at the Ozark Correctional Institute. Haggard testified that Kleypas had been a member of the prison fire department responsible for helping fire departments in the surrounding area. Haggard testified that Kleypas was a good worker and followed orders. He also testified that Kleypas had assisted him with administrative and teaching activities and was instrumental in raising money for training materials and fire fighting equipment. He identified Kleypas in a picture from a yearly banquet that the fire fighting crew was allowed to have for an award ceremony.
On cross-examination, prosecutor Disney engaged in the following colloquy:
“[Prosecutor]: And they were allowed according to these pictures to have banquets?
“[Haggard]: Yeah. They were allowed to have one a year. If they had an organization — like the Jaycees they had an organization there.
“[Prosecutor]: They could have cakes in prison and just typical every day life; correct?
“[Haggard]: Well, sort of.
“[Prosecutor]: They were also allowed to have bridge clubs in prison; is that correct?
“[Haggard]: I have no idea.
“[Prosecutor]: Softball tournaments?
“[Haggard]: I’ve seen them playing softball.
“[Prosecutor]: Were you aware that the defendant was associated with a bridge club?”
Defense counsel objected, and the trial court sustained the objection. Defense counsel then asked for a curative instruction which would inform the jury that the prosecutor had improperly attempted to imply that prison was an easy fife and further inform the jury that life in prison was difficult. The trial court explicitly found that the prosecutor had violated the earlier order prohibiting evidence of prison conditions. The trial court stated that “it was obvious” that the prosecutor was trying to imply to the jury that prison life was easy. The prosecutor agreed that he had attempted to suggest that prison was an easy environment. The trial court gave a curative instruction informing the jury that the prosecutor had improperly attempted to suggest that prison was an easy environment and instructed the jury to disregard such an implication.
The prosecutor’s cross-examination of Haggard was a violation of the trial court’s order and constituted prosecutorial misconduct. The cross-examination was an attempt to prejudice the jury by improperly suggesting to them that prison was an easy environment, and the prosecutor admitted as much. Such evidence was clearly irrelevant, inadmissible, and prejudicial to the defendant. We are greatly disturbed by the prosecutor’s conduct, especially considering the nature of this case.
Prosecutorial Misconduct During Closing Arguments
A. Comments Regarding the Defendant’s Right to Remain Silent
The prosecutor in closing argument made the following statement regarding mitigating evidence:
“[Prosecutor]: The defendant also makes the claim that he’s remorseful, that he’s sorry. Let’s talk about remorse. He sat here for a whole month and you’ve had an opportunity to observe the defendant.”
At that point, the defendant objected on the grounds that the prosecutor was preparing to say that the jury had not observed remorse on the part of the defendant and that this was an implication of the defendant’s Fifth Amendment right to remain silent. The court sustained the objection and instructed the jury to disregard the remark.
The Fifth Amendment to the United States Constitution, as well as § 10 of the Kansas Constitution Bill of Rights, protects the right of the defendant to exercise his privilege not to testify and forbids comment by the prosecution on the defendant’s silence. Griffin v. California, 380 U.S. 609, 615, 14 L. Ed. 2d 106, 85 S. Ct. 1229, reh. denied 381 U.S. 957 (1965); State v. Ninci, 262 Kan. 21, 47, 936 P.2d 1364 (1997). A prosecutor commits error when the language used was manifestly intended or was of such a character that the jury would necessarily take it to be a comment on the failure of the accused to testify. 262 Kan. at 48.
In the case at hand, the prosecutor’s statement was not directly related to the defendant’s failure to testify. However, it was indirectly related in that it appears the prosecutor was preparing to argue that the jury had the opportunity to view the defendant during the trial and the defendant did not appear to be remorseful. Such comment is equally a violation of a defendant’s Fifth Amendment right in that the prosecutor was attempting to use evidence of the defendant’s courtroom behavior where the defendant has exercised his right not to testify. See United States v. Carroll, 678 F.2d 1208, 1209-10 (4th Cir. 1982); U.S. v. Schuler, 813 F.2d 978, 979-82 (9th Cir. 1987); United States v. Wright, 489 F.2d 1181, 1186 (D.C. Cir. 1973). However, the line of questioning was cut off by a prompt objection from defense counsel and by the riding of the trial court.
The defendant also complains of another comment made by the prosecutor while discussing circumstances of mitigation. In discussing the defendant, the prosecutor stated: “Essentially the defendant says my daddy beat my brothers so I killed two women. Nowhere in this long record has the defendant said himself that this was — that his father — ”
Defense counsel again objected and a conference was held at the bench. Defense counsel argued that the comment was directed toward the defendant’s decision not to testify. When asked if he had any comment, the prosecutor stated: “Yes, Your Honor, that is not a comment on the defendant not testifying. That is a comment on the fact that he has been through nine evaluations and another trial and has never said a word about not causing that.” The trial court ultimately stated: “I’m going to overrule the objection but don’t reference that.”
It is not entirely clear what the prosecutor’s comment actually concerned. Apparently, the prosecutor was getting ready to state that the defendant had not testified anywhere that his father beat either him or his brothers. Depending on the context, this could have been an improper comment on the defendant’s right to re main silent. Once again, prompt action by the trial court prevented any prosecutorial misconduct from occurring.
B. Comments Regarding Mitigating Circumstances
Kleypas contends that the prosecutor repeatedly instructed the jury to ignore mitigating evidence and also instructed the jury that mitigating evidence must excuse or justify the crime. Kleypas argues that these comments violated the Eighth and Fourteenth Amendments to the United States Constitution, as well as §§ 1, 2, 9, and 18 of the Kansas Constitution Bill of Rights.
The resolution of this issue requires a detailed analysis of the requirements of the Eighth and Fourteenth Amendments regarding mitigating circumstances. In Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978), the United States Supreme Court held:
“[T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”
The Court, therefore, struck down an Ohio statute that limited the mitigating circumstances a judge could consider. 438 U.S. at 608-09.
Lockett was followed by Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982). In Eddings, the Court overturned a death sentence where the sentencing court declined to consider certain evidence in mitigation because it did not excuse the crime. The Court reasoned:
“Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence. In this instance, it was as if the trial judge had instructed a jury to disregard the mitigating evidence Eddings proffered on his behalf. The sentencer, and the Court of Criminal Appeals on review, may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration.” 455 U.S. at 113-15.
Thus, in Eddings, the Court held that a sentencer must consider all relevant mitigating evidence, whether or not the evidence “suggests] an absence for the responsibility of the crime of murder.” 455 U.S. at 116.
The Eddings rationale was employed by the Court in Skipper v. South Carolina, 476 U.S. 1, 90 L. Ed. 2d 1, 106 S. Ct. 1669 (1986), wherein the Court overturned a death sentence because the trial court refused to allow the defendant to present testimony to the jury regarding his character and probable future conduct if sentenced to life in prison. The Court stated: "‘Although it is true that any such inferences would not relate specifically to petitioner’s culpability for the crime he committed, [citation omitted] there is no question but that such inferences would be "mitigating’ in the sense that they might serve "as a basis for a sentence less than death.’ [Citation omitted.]” 476 U.S. at 4-5.
Lockett, Eddings, and Skipper make it clear that the sentencer must be allowed to consider all relevant mitigating evidence and that such evidence need not excuse or justify the crime or in fact relate to the defendant’s culpability as long as it serves as a basis for a sentence léss than death. The defendant’s argument is that the prosecutor improperly argued to the jury that it should not consider certain mitigating circumstances because they did not excuse or justify the crime or were not mitigating circumstances at all.
Kleypas contends that it was improper for the prosecutor to argue that certain claimed mitigating circumstances were in fact not mitigating. According to Kleypas, this prevented the jury from considering or giving effect to the evidence in support of the circumstances. Clearly, the prosecutor made several statements in which he urged the jury to find that several of Kleypas’ claimed mitigating circumstances were not in fact mitigating. However, while Kleypas seems to believe that these comments in some way prevented the jury from considering these circumstances as mitigating, the prosecutor’s argument in this regard was not improper. The jury is charged with determining what constitutes mitigating circumstances. See K.S.A. 21-4624(e); PIK Crim. 3d 56.00-D. Therefore, it is proper for a prosecutor to argue that certain circumstances not be considered as mitigating circumstances.
However, it is improper for a prosecutor to argue that certain circumstances should not be considered as mitigating circumstances because they do not excuse or justify the crime. “Mitigating circumstances are those which in fairness may be considered as extenuating or reducing the degree of moral culpability or blame or which justify a sentence of less than death, even though they do not justify or excuse the offense.” PIK Crim. 3d 56.00-D. See Skipper, 476 U.S. at 4-5. A prosecutor who argues that mitigating circumstances must excuse or justify the crime improperly states the law.
During closing argument, the prosecutor made several references to the fact that Kleypas’ claimed mitigating circumstances did not excuse or justify the crime. The prosecutor first stated that although the defendant claimed brain damage as a mitigator, the defendant’s expert “couldn’t say” that the brain damage caused either C.W.’s murder or the previous murder of Bessie Lawrence. Defense counsel objected but was overruled. Next, the prosecutor noted Kleypas’ claim of alcohol use as a mitigator and stated: “A pint bottle of Canadian Mist did not cause this murder.” Defense counsel did not object to this statement. Regarding the claimed mitigator that Kleypas did well in prison, the prosecutor stated: “Does the fact that he did well in prison make the murder of [C .W.] less severe?” No objection was lodged to this statement. The prosecutor then referenced Kleypas’ claim that his paraphilia was a mitigator, stating: “The defendant’s paraphilia did not kill [C.W.].” There was no objection to this comment. The prosecutor went on to ask the jury that even if Kleypas had schizophrenia which he claimed to be a mitigating circumstance, “Does that lessen what he did?” Defense counsel did not object to this statement.
These statements by the prosecutor were clearly improper and reflect a complete lack of understanding of the concept of mitigating circumstances. By these statements, the prosecutor argued to the jury that mitigating evidence should not be considered unless it excused or justified the crime; this was an erroneous standard of law. The State offers little justification for these comments, choos ing to argue instead that this court should not address many of them because no objection was lodged, citing State v. Baker, 249 Kan. 431, 446, 819 P.2d 1173 (1991), for the well known standard that reversible error cannot be predicated upon a claim where no contemporaneous objection was lodged. This argument ignores our holding in State v. McCorkendale, 267 Kan. 263, 278, 979 P.2d 1239 (1999), that if the prosecutor s statements rise to the level of violating a defendant’s right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection. The State generally argues that the prosecutor’s statements were taken “out of context,” a claim that does very little to explain the remarks.
A related issue is Kleypas’ contention that the prosecutor also made comments telling the jury to disregard mitigating evidence because it was not causally related to the crime. Regarding Kleypas’ claimed mitigating circumstance of damaged brain due to cocaine use, the prosecutor stated to the jury that because Kleypas did not use cocaine on the night of the murder, “Cocaine just didn’t enter into the picture. The cocaine use was all a smoke screen, all a distraction to divert your attention away.” Defense counsel immediately objected, but the trial court overruled the objection, whereupon the prosecutor stated: “That is a distraction to divert your attention away from the defendant’s intentional and premeditated actions.” Similarly, regarding Kleypas’ schizophrenia, the prosecutor stated: “Ladies and gentlemen, the crux of this issue about schizophrenia is it simply doesn’t matter and why, it is because the murder of [C.W.] was intentional and was planned and it was organized. Schizophrenia and severe emotional distress just don’t enter into the picture of this murder.” There was no objection to this statement.
Once again, the prosecutor’s comments reflect a complete misunderstanding about the nature of mitigating circumstances. While neither Kleypas’ brain damage nor schizophrenia may have caused the murder, both conditions are relevant in the determination of whether either should reduce the moral culpability or blame assigned to Kleypas. In a general sense, they are mitigating because “ ’they might serve ’as a basis for a sentence less than death.’ ” See Skipper, 476 U.S. at 4-5. By his comments, the prosecutor told the jury not to consider them as mitigators in direct contravention of Skipper and Eddings, see 455 U.S. at 113-14. This constituted prosecutorial misconduct.
C. Comments Regarding Expert Witnesses
Kleypas argues that the prosecutor committed additional misconduct in closing argument by mischaracterizing the evidence in an attempt to impeach Kleypas’ experts and by improperly expressing his personal opinion with regard to the credibility of those experts.
The first instance complained of occurred during the prosecutor’s discussion of the testimony of Dr. Othmer and Dr. Park, two of Kleypas’ expert witnesses. The prosecutor stated:
“You know, sometimes we can tell something about a person’s bias by a comment they let slip and remember Dr. Othmer on the stand and how did he describe the brutal murder of [C.W.]. I made a note of it because I found it so shocking. He said he intruded and the death occurred. He intruded and the death occurred. Well, I guess it did and Mr. Park he said on the outside the defendant did some bad things to some people. The murder of Bessie [Lawrence] and the murder of [C.W.] are passed off as the defendant doing some bad things to some people. I would submit that people who can describe what happened to [C.W.] in those terms simply aren’t worthy of your belief.”
Defense counsel immediately objected but was overruled based on the prosecutor’s assertion that the comment was “on what the evidence shows about the defendant.”
The prosecutor’s comment told the jury that in the prosecutor’s opinion, it should not believe the defense experts because those experts described the murders in sanitized terms. A prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant. See Kansas Rules of Professional Conduct (KRPC) 3.4(e) (2001 Kan. Ct. R. Annot. 406), and 1 American Bar Association (ABA) Standards for Criminal Justice, Prosecution Function and Defense Function, Standard 3-5.8 (3d ed. 1993). “The point of not allowing a prosecutor to comment on the credibility of a witness is that expressions of personal opinion by the prose cutor are a form of unsworn, unchecked testimony, not commentary on the evidence of the case.” State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000). The prosecutor’s remark injected his personal opinion as to the credibility of the witnesses and was clearly improper.
The prosecutor also made other comments relating to Kleypas’ experts. Regarding Dr. Preston, the prosecutor stated: “Dr. Preston admits to you that he cannot tell one thing about the behavior of the defendant on the night of the murder by looking at his brain.” Regarding Dr. Lipman, the prosecutor stated:
“He was the one that was told by the defense not to bring his notes to the stand and what did those notes have in them?
“They had a notation about a conversation that the Doctor had with the defendant what did the defendant tell the Doctor, that he had not been using cocaine on the night he murdered [C.W.].”
Defense counsel objected to this comment as a mischaracterization but was overruled. The prosecutor then referenced Dr. Park, noting:
“Mr. Park went through — he’s the expert from California and he went through the prison record for the defense. He said the defendant has an excellent record but wasn’t going to tell you about the part of the file that says the defendant victimizes weaker inmates and he wasn’t going to tell you about the part of the file that says the defendant . . . ‘was an agitator in prison about the races.’
“... I was the one that had to bring that out in the questioning of the defendant’s own expert.”
Again, defense counsel’s numerous objections were overruled. Finally, with regard to Dr. Gentry, the prosecutor stated:
“It is curious that one psychologist, Dr. Gentry, could have given a test that had a validity scale built into it. It is the MMPI test and the validity scales remember indicate — are an indication of whether the person who takes the test is lying or not. And isn’t it interesting that this is the one test that Dr. Gentry didn’t give and what was Dr. Gentry’s excuse for not giving this test? He said that a schizophrenic would . . . never sit through the test. Remember he said — he said well, he wouldn’t sit through it, he would be climbing the walls but, ladies and gentlemen, you have seen the defendant sitting here for a month and you haven’t seen him climbing the walls and, in fact, his behavior has been so good here that the defense now claims it is a mitigator. And look at his school records. He’s a nursing student, he’s on the honor roll. He took tests in nursing school and he didn’t climb the walls. Are they really trying to tell us that he couldn’.t take the MMPI because of a schizophrenia or was it because they were afraid of the validity scales.”
Once again, defense counsel’s objections were overruled.
Kleypas contends that the above statements were improper because they mischaracterized the evidence in an attempt to insinuate that the defense experts were trying to hide information from the jury. He argues that this attempted impeachment of his experts constituted misconduct.
A prosecutor is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence adduced. Reasonable inferences may be drawn from the evidence and the prosecutor is given wide latitude in discussing the case. State v. Spresser, 257 Kan. 664, 669, 896 P.2d 1005 (1995). However, it is improper to state facts in closing argument that are not in evidence or contrary to the evidence. See State v. Heath, 264 Kan. 557, 583, 957 P.2d 449 (1998); State v. White, 263 Kan. 283, 302, 950 P.2d 1316 (1997). See also People v. Hill, 17 Cal. 4th 800, 823, 72 Cal. Rptr. 2d 656, 952 P.2d 673 (1998) (stating that although prosecutors have wide latitude to draw inferences from the evidence presented at trial, mischaracterizing the evidence is misconduct).
With regard to Dr. Preston’s testimony, the prosecutor’s statement: “Dr. Preston admits to you that he cannot tell one thing about the behavior of the defendant on the night of the murder by looking at his brain,” while not entirely accurate, was a reasonable inference from the testimony. Dr. Preston testified that he was unable to say that because of abnormalities in the flow of Kleypas’ brain, Kleypas would act in a certain way. Dr. Preston also testified that there was no way to tell from the scan of the brain what behavioral affect Kleypas’ brain injury would cause. Dr. Preston did testify the damage to Kleypas was of the type that might manifest itself in a syndrome related to sexual violence. On the whole, however, the prosecutor’s statement was factually correct and did not mischaracterize the testimony.
With regard to the testimony of Dr. Lipman, the prosecutor’s comments clearly insinuated that the defense was trying to keep information from the jury, first by noting that Dr. Lipman was asked not to bring his notes to court, and then by stating that the notes had a notation in them to the effect that Kleypas did not use cocaine on the date in question. The first insinuation is one which the prosecutor should be allowed to draw, as Dr. Lipman confirmed that he was specifically asked not to bring the notes with him to the trial.
The second insinuation is more troubling. On cross-examination, Dr. Lipman was asked whether Kleypas told him he was using cocaine on the night of the murder. Dr. Lipman stated that Kleypas had denied using cocaine that night. Contrary to the prosecutor’s closing statement, it is not known whether that information was in Dr. Lipman’s notes. There was absolutely no evidence that the defense attempted to hide the notes in order to prevent this fact from reaching the jury. In fact, the prosecutor’s questioning indicated that the State was aware of the fact that Kleypas had told Dr. Lipman that he was not using cocaine the night of the murder. To suggest that Dr. Lipman was attempting to hide the information was unwarranted by the evidence and outside the permissible bounds of inference.
Dr. Park testified regarding Kleypas’ prison record that Kleypas made an excellent adjustment to life in prison with few problems. On cross-examination, the prosecutor highlighted a correctional adjustment checklist in which the phrases “victimizes weaker inmates” and “agitator about race” were contained. The prosecutor argued during closing that Dr. Park was not going to tell the jury about the checklist implying that Dr. Park was hiding information. While such an inference is questionable, it is within the wide latitude given to a prosecutor in that it is at least factually accurate and consistent with the evidence.
The prosecutor’s comments with regard to Dr. Gentry’s reason for not giving Kleypas an MMPI test are more troubling. During defense counsel’s redirect, Dr. Gentry was asked why an MMPI test was not normally given to a person suspected of being a paranoid schizophrenic. He answered:
“There is an old graduate school joke that goes something like what is the profile of a paranoid schizophrenic on the MMPI and the answer is got you, because a paranoid schizophrenic wouldn’t sit through an MMPI and if he or she did, it would be so distorted that it would be impossible to interpret.”
Dr. Gentry then stated that at the time he made the decision on whether to administer the MMPI, he had enough diagnostic evidence from other testing that he had already made his diagnosis.
From those brief comments, the prosecutor stated: “He said a schizophrenic would never sit through the test. Remember he said — he said well, he wouldn’t sit through it, he would be climbing the walls . . . .” The prosecutor then told the jury that it had the opportunity to observe Kleypas in the courtroom and to look at Kleypas’ record and that Kleypas never showed signs of “climbing the walls.” He then stated: “Are they really trying to tell us that he couldn’t take the MMPI because of a schizophrenia or was it because they were afraid of the validity scales?”
Certainly, it is within the bounds of the prosecutor’s latitude to question why certain tests were or were not given and even to ask die jury to draw an inference from that test provided that the inference is a reasonable one. It would have been within the bounds to the prosecutor’s latitude to suggest to the jury that Kleypas was not given the MMPI test because Dr. Gentry was afraid of the results due to the MMPI’s built-in validity scale. However, the prosecutor was not free to mischaracterize and exaggerate Dr. Gentry’s testimony to lend credence to that inference. Dr. Gentry testified that he does not normally give the MMPI test to persons suspected of being paranoid schizophrenics because ihey generally will not sit through the test and the test would give distorted results and that in Kleypas’ case the test was unnecessary because he already had enough information to form a diagnosis. Dr. Gentry did not say that Kleypas would be “climbing the walls” if he administered the MMPI test. The prosecutor’s closing argument put those words in Dr. Gentry’s mouth and then used that standard as a comparison for Kleypas’ conduct to support his argument to the jury that Kleypas did not have schizophrenia. This argument mischaracterized the evidence and was improper.
D. Comments Regarding Denigration of Mercy and Referencing Victim’s Thoughts
Kleypas contends that certain statements made by the prosecutor during closing argument concerning the crime itself consti tuted prosecutorial misconduct. He claims the prosecutor’s comments denigrated the concept of mercy by urging the jury to show the same mercy to Kleypas that he showed to the victim. Kleypas further claims that the prosecutor prejudiced his rights by referring to an “imaginary script” of the crime which contained facts not in evidence. Finally, Kleypas contends that the prosecutor committed misconduct in urging the jury to focus on issues irrelevant to the question of whether the death penalty should be imposed.
In his argument concerning statements which denigrated the concept of mercy, Kleypas complains of certain statements made by the prosecutor regarding Kleypas’ lack of mercy to the victim. In describing the victim’s injuries, the prosecutor stated: “Look at these pictures. Do you see any leniency in these pictures. Do you see any mercy at all in these pictures?” Kleypas contends that this statement improperly suggested to the jurors that they should not give Kleypas mercy because he had not shown mercy to the victim.
There is some dispute over whether it is improper for a prosecutor to argue to a sentencing jury that they should show a defendant the same mercy that the defendant gave to the victim. Some courts have held that this type of argument is an improper appeal to the sympathy of the jury calculated to influence the sentence. See Lawson v. Dixon, 3 F.3d 743, 755 (4th Cir. 1993); Richardson v. State, 604 So. 2d 1107, 1109 (Fla. 1992); Crowe v. State, 265 Ga. 582, 592-93, 458 S.E.2d 799 (1995); Le v. State, 947 P.2d 535, 554-55 (Okla. Crim. App. 1997); State v. Bigbee, 885 S.W.2d 797, 809-12 (Tenn. 1994). Other courts, however, have found such argument proper under the latitude granted to the prosecutor to argue about the effects of the crime as long as the prosecutor does not suggest to the jury that it is prohibited from showing mercy to the defendant because he or she gave none to the victims. See People v. Ochoa, 19 Cal. 4th 353, 464-66, 79 Cal. Rptr. 2d 408, 966 P.2d 442 (1998); State v. Summit, 454 So. 2d 1100, 1108-09 (La. 1984); Com. v. Hackett, 558 Pa. 78, 93-94, 735 A.2d 688 (1999).
In a capital case, it is important for the jury to be able to evaluate whether a defendant is deserving of mercy. As part of the same concept, however, it is clearly proper for a prosecutor to argue against the granting of mercy. We hold that it is proper for the prosecutor to argue that the defendant is not deserving of the jury’s mercy because of the defendant’s actions, as long as the prosecutor does not improperly state the law by arguing to the jury that it is prohibited from granting mercy to the defendant because the defendant showed none to the victim.
The statement in this case, while not expressly imploring the jury to show the same mercy to Kleypas that he showed to the victim, implicitly suggested this concept. However, it did not suggest to the jury that the jury could not find mercy. Therefore, in line with Ochoa, Summitt, and Hackett, we conclude that the comments were not improper and were within the latitude afforded the prosecution.
Kleypas raises a similar issue pointing out that the prosecutor further suggested that the same mercy as given to the victim be given to Kleypas. In arguing to the jury, the prosecutor stated: “The defense attorney will plead with you to let the defendant be sentenced to prison for fife but think about this. When the defendant was over at [C.W.’s] house on March 30 of 1996 and he was over there — ” At this point, Kleypas objected, on the grounds that the prosecutor was about to ask the jury to show the same kind of mercy that Kleypas had shown C.W. The court then ordered the prosecutor not to make that argument.
As discussed above, it is questionable whether such an argument, even if made by the prosecutor, would have been improper. The prompt action of defense counsel in objecting and the trial court in prohibiting the argument kept any error from occurring. The prosecutor’s statement, up to the objection, did not constitute error.
The next area argued by Kleypas regarding his contention that the prosecutor denigrated the concept of mercy has to do with the prosecutor creating an “imaginary script” of what happened during the incident and what the victim’s thoughts might have been. Kleypas argues that in creating this script the prosecutor introduced facts not in evidence and attempted to unduly create, arouse, and inflame the sympathy of the jury.
The four statements of which Kleypas complains were made at different points during the prosecutor’s argument. Referring to a picture of the victim, the prosecutor stated: “When someone’s eyes are closed as [C.W.j’s are in this picture, they look almost peaceful. But you can bet that when he was beating her, her eyes weren’t closed and it was anything but peaceful.” There was no objection to this statement and the statement does not constitute misconduct. A prosecutor is allowed to argue reasonable inferences from the evidence and it is reasonable to infer from the injuries described that the beating suffered by the victim was severe and not “peaceful,” which was the import of the prosecutor’s statement.
There is a problem, however, with the next group of statements complained of by Kleypas. In describing the victim’s injuries, the prosecutor stated that when the victim was tied to a chair, she struggled to get away and bruised her own leg in the process. An objection that there was no evidence regarding how the bruise occurred was overruled. In reference to a photograph of the victim, the prosecutor stated: “What we don’t see in this picture are any tears. I’m sure there must have been tears, tears of fear, tears of pain, and tears for her dreams that would go unfulfilled.” Defense counsel objected and the trial court overruled after being assured by the prosecutor that he would not go further into the matter. Later, the prosecutor stated:
“Also talk about the mental anguish that [C.W.] must have suffered, the uncertainty as to her fate. He burst in knocking her back against the couch, forced her at knife point down that long hall, more than 40 feet down that long hall. Think of what she must have thought when he burst through that door. Then think of the anguish she must have felt when she saw that knife. There is a song that came out several years ago about men aboard a sinking ship, a storm had struck and the ship was going down and the men knew they were going to die and the song writer said the waves turned the minutes to hours. Well, think of how long that time must have seemed to [C.W.]. He was there for one and a half to several hours. And that must have seemed a lifetime to [C.W.] and indeed it was her lifetime. It was the rest of her life. What did she think when he burst in the door? Sure at some point she thought this can’t be happening to me, this isn’t real, it can’t be happening. And later as he was attempting to rape her she must have thought this is the worst I can survive. I just have to get through this. While he was making her orally stimulate him, she must have thought just endure this, jest [sic] get through it but at some point she realized I’m going to die. This guy is going to kill me.
“Did she have even one moment to think about her parents. Did she have a moment to think of her brother and sister — ”
Defense counsel objected at this point but the objection was overruled.
Prosecutorial comments referring to what the victim was thinking are improper because they ask the jury to speculate on facts not in evidence. See State v. Combs, 62 Ohio St. 3d 278, 282-83, 581 N.E.2d 1071 (1991). It is improper for the prosecutor to create an “imaginary script” in order to create and arouse the prejudice and passion of the sentencing jury. See Urbin v. State, 714 So. 2d 411, 421 (Fla. 1998) (error for prosecutor to put imaginary words in victim’s mouth); McCarty v. State, 765 P.2d 1215, 1220 (Okla. Crim. App. 1988) (error for prosecutor to suggest that the defendant was grinning and laughing when he murdered the victim).
The State argues that allowing such comments during the penalty phase of a trial is not improper, citing People v. Haskett, 30 Cal. 3d 841, 180 Cal. Rptr. 640, 640 P.2d 776 (1982). In Haskett, the California Supreme Court ruled that it was not necessarily improper for the prosecution to put itself in the shoes of the victim and imagine suffering the acts inflicted on her. 30 Cal. 3d at 863-64. In so reaching this conclusion, the court stated:
“Although appeals to the sympathy or passions of the jury are inappropriate at the guilt phase [citation omitted], at the penalty phase the juiy decides a question the resolution of which turns not only on the facts, but on the jury’s moral assessment of those facts as they reflect on whether defendant should be put to death. It is not only appropriate, but necessary, that the jury weigh the sympathetic elements of the defendant’s background against those that may offend the conscience. [Citations omitted.] In this process, one of the most significant considerations is the nature of the underlying crime. Hence assessment of the offense from the victim’s viewpoint would appear germane to the task of sentencing.” 30 Cal. 3d at 863-64.
Accordingly, the California Supreme Court directed the trial courts to strike a careful balance between the probative and prejudicial and allow evidence and argument on emotional though relevant subjects but deny evidence or argument that would divert the jury from its proper role of soberly and rationally determining whether the defendant should be put to death. 30 Cal. 3d at 864. The court concluded that the prosecutor’s comment was relevant and “insufficiently inflammatory” to justify reversal. 30 Cal. 3d at 864.
Prosecutors are allowed to introduce relevant evidence to show the victim’s mental anguish and further to make arguments and inferences from the evidence that the victim suffered such mental anguish, where relevant. However, prosecutors cross the fine when they make up an imaginary script that purports to tell the jury what the victim was feeling, where there is no evidence to support such a script. At that point, the imaginary script becomes evidence that was not admitted during trial.
The prosecutor was correctly allowed to describe the violence of the murder and everything that took place in conjunction with it, as well as argue to the jury that the victim could have suffered great mental anguish. However, when the prosecutor began speculating as to the victim’s thoughts and essentially making up an eternal dialogue for the victim, he crossed the fine into a blatant appeal to the emotions of the jury. This constituted misconduct, as did his speculation to the jury that the victim bruised her legs while trying to escape where no evidence actually existed as to the cause of the bruise.
The final argument made by Kleypas with regard to the prosecution’s denigration of mercy is that the prosecutor repeatedly showed the picture of the victim to the jury while asking if it saw tears in her eyes. Kleypas argues that this request was obviously not based on the evidence as no dead victim can cry and, instead, was a naked appeal to the sympathy and prejudice of the jury.
Kleypas’ argument misstates what occurred. The prosecutor did not ask the jury whether it saw tears in the picture, rather he asked the jury if it saw leniency or mercy in the injuries depicted by the picture. Later, the prosecutor told the jury that although there were obviously no tears in the picture there must have been tears at the time. As noted above, this speculation regarding the tears was improper not because the prosecutor necessarily speculated that there were tears but because the prosecutor then purported to know the victim’s thoughts. However, there was no misconduct in the prosecutor’s use of the picture. During closing argument, we have allowed prosecutors to refer to and use photographs of victims as long as die purpose is not to unduly inflame the passions of the jury and prejudice it towards the defendant. See State v. Walker, 252 Kan. 279, 287-88, 845 P.2d 1 (1993). The prosecutor s use of the photograph in this case to show the nature of the injuries inflicted was relevant to support the aggravating circumstance that the murder was committed in an especially heinous, atrocious and cruel manner.
E. The Characterization of Kleypas as a Race Agitator
Kleypas argues that the prosecutor, in closing argument, improperly told the juxy that Kleypas was a “race agitator” who preyed on weaker inmates. Kleypas argues that this characterization was not based on the evidence and was unfair.
This argument is without merit. The prosecutor was referring to his cross-examination of defense expert Dr. Park regarding Kleypas’ prison record. During the cross-examination, the prosecutor had highlighted a correctional adjustment checklist that contained the phrases “victimizes weaker inmates” and “agitator about race.” The prosecutor then mentioned this checklist in closing argument to rebut Kleypas’ alleged mitigating circumstance that he adjusted well to prison life.
Kleypas attempts to characterize the argument as an appeal to racism; more specifically, as an appeal raising the specter that Kleypas would start “violent race wars” if sentenced to prison. It was not. Rather, it was a proper use of the evidence of Kleypas’ conduct to rebut Kleypas’ assertion that he did well in prison society.
F. Alleged Suggestions that Kleypas Could be Released to Kill Again
Kleypas argues that the prosecutor improperly warned the jury that Kleypas could be released to kill again, thus attempting to frighten and intimidate the jury into imposing a death sentence as well as attempting to introduce a nonstatutory aggravating circumstance of future dangerousness. Kleypas also contends that by using the phrase “God help us,” the prosecutor suggested to the jury that God would punish it for not imposing the death penalty.
It is clearly improper to make references to a defendant’s potential for future dangerousness. See State v. Gibbons, 256 Kan. 951, 963, 889 P.2d 772 (1995). It is also clearly improper to attempt to introduce a nonstatutory aggravating circumstance. See K.S.A. 21-4625 (limiting aggravating circumstances to those listed). It is further improper to suggest to the jury that God would punish it for its actions in not sentencing the defendant to death. However, the referenced argument by the prosecutor did none of those things. Instead, the prosecutor argued:
“Ladies and gendemen, the death of Bessie Lawrence in 1977 was a senseless, brutal and tragic murder and the defendant was convicted of second degree murder in 1977 for the death of Bessie Lawrence and he served about fifteen years in prison and he got out and within four years he did it again. God help us, within four years he murdered again.”
These statements by the prosecutor were made during the discussion of the aggravating circumstance that Kleypas had previously murdered another and relate to that circumstance rather than to the future dangerousness of Kleypas. Kleypas’ argument mischaracterizes the context of the remarks and is without merit.
G. Alleged Comments Minimizing the fury’s Responsibility
Kleypas contends that the prosecutor committed misconduct by arguing that Kleypas himself by his actions had already made the choice for the jury regarding whether to impose the death penalty. Kleypas argues fhat these comments improperly minimized the jury’s sense of responsibility for the decision.
Kleypas complains of the following comments made at the outset of the prosecution’s closing argument:
“Choice, this part of tire trial is about choices. Choices that the defendant has made and choices that the defendant has not. And now a choice that you must make. Now, we look at the crime the defendant committed and not necessarily the method he used but the manner in which he committed that crime. And we look at the reason that he committed that crime, to avoid arrest or prosecution. And we look at the facts surrounding the crime and we look at the fact surrounding the defendant and what he has done in his past. And what we find, ladies and gentlemen, what we discover is that the defendant has made the choice for us." (Emphasis added.)
In summing up his closing argument, the prosecutor stated that Kleypas had already been faced with the prospect of spending his life in prison because the victim, C.W., could identify him but he made die decision to kill the victim to try to make good his escape. Therefore, the prosecutor stated: “[H]e had that opportunity to spend the rest of his life in prison. But he chose to murder instead. He has made this choice about life in prison.” Finally, the prosecutor stated:
“You may be told that imposing the death penalty is one of the hardest things you will ever do, diat may be true. But that is the duty that you are sworn to undertake to make that decision. The defendant has made choices and were it not for the choices he has made, today he could be a college graduate working in the field of nursing but he did make choices and now he must answer for those choices.”
There were no objections to the above statements.
In Caldwell v. Mississippi, 472 U.S. 320, 328-29, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985), the United States Supreme Court held that under the Eighth Amendment, “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” The prosecutor in Caldwell had, in closing argument, informed the jury that its decision was not final and that the defendant would receive an appeal. The Court noted that such an argument presents an intolerable danger of bias towards the death penalty and encourages the jury to vote for death on the assumption that any error in its decision would be corrected on appeal. 472 U.S. at 330-31. Further, the Court found that the prosecutor’s comments specifically violated the Eighth Amendment and, thus, were not subject to the general harmless error rule but rather the rule for constitutional error. 472 U.S. at 339-41.
Caldwell was later narrowly construed by the United States Supreme Court. See Romano v. Oklahoma, 512 U.S. 1, 9, 129 L. Ed. 2d 1, 114 S. Ct. 2004 (1994). In reaffirming the basic rule in Caldwell, the Court in Romano stated that “ ‘[t]o establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law.’ ” 512 U.S. at 9 (quoting Dugger v. Adams, 489 U.S. 401, 407, 103 L. Ed. 2d 435, 109 S. Ct. 1211 [1989]).
The prosecutor in the case at hand did not attempt to improperly describe the role assigned to the jury. He did not argue that some other party such as the trial judge or an appellate court bore the ultimate responsibility for Kleypas’ fate. Rather, he argued that Kleypas himself bore responsibility for his fate. Such an argument is appropriate. See Coe v. Bell, 161 F.3d 320, 350 (6th Cir. 1998); People v. Jackson, 13 Cal. 4th 1164, 1238, 56 Cal. Rptr. 2d 49, 920 P.2d 1254 (1996); People v. Burgess, 176 Ill. 2d 289, 318-19, 680 N.E.2d 357 (1997); State v. Scales, 655 So. 2d 1326, 1334-35 (La. 1995); State v. Harris, 870 S.W.2d 798, 807-08 (Mo. 1994); State v. McLaughlin, 341 N.C. 426, 443, 462 S.E.2d 1 (1995); State v. Brimmer, 876 S.W.2d 75, 85-86 (Tenn. 1994).
The one case relied upon by Kleypas, Buttrum v. Black, 721 F. Supp. 1268 (N.D. Ga. 1989), aff'd 908 F.2d 695 (11th Cir. 1990), is distinguishable. In Buttrum, the court found improper comments by the prosecutor that the defendant had “signed her own death warrant” and alone was responsible for her death. The prosecutor characterized the jury as “merely one cog in the criminal process.” 721 F. Supp. at 1316. Thus, in Buttrum, the prosecutor did improperly minimize the role of the jury in the process, referring to the jury as only one cog in the process. That is different than the argument in the case at hand which suggested to the jury that Kleypas should be held responsible for his own actions. The prosecutor’s comments were not improper.
H. Comments Urging the fury to Impose the Death Sentence for the Murder of Bessie Lawrence
Kleypas contends that the prosecutor committed misconduct through his comments regarding the prior murder of Bessie Lawrence. He argues that the prosecutor’s comments improperly urged the jury to impose the death penalty for the murder of Lawrence as well as the murder of C.W.
Regarding Kleypas’ alleged mitigating circumstances, the prosecutor stated: “And what are circumstances that the defendant claims mitigate against the death of [C.W.] and the death of Bessie Lawrence?” The prosecutor asked the jury regarding Kleypas’ mental illness: “Could that possibly outweigh what he did to [C.W.], the manner in which he did it and could it possibly outweigh the death earlier of Bessie Lawrence.” Defense counsel’s objection to this latter comment was overruled.
Kleypas cites State v. Bigbee, 885 S.W.2d 797 (Tenn. 1994), for his proposition that the prosecutor committed misconduct. In Big-bee, the defendant had previously been convicted of felony murder in Montgomery County and was facing the death sentence for murder in Sumner County. During closing argument in the penalty phase, the prosecutor argued that the death penalty would be an appropriate way in which to punish the defendant not only for the Sumner County killing but also for the Montgomery County killing. In finding this to be improper, the Bigbee court stated:
“Obviously, the State may argue the existence of the prior conviction as an aggravating circumstance supports imposition of the death penalty; however, in this case, the State’s argument went beyond that limit and strongly implied, without flatly stating, that die defendant should be sentenced to death as additional punishment for the previous conviction. The defendant had already been tried, convicted and separately sentenced for that crime. Argument encouraging this jury to impose an additional punishment was improper.” 885 S.W.2d at 812.
The Bigbee court noted that this error, standing alone, might have been harmless but combined with other errors it mandated reversal of the defendant’s sentence. 885 S.W.2d at 812.
The situation in Bigbee was somewhat different from our case. Tennessee has determined that it is not appropriate to admit evidence regarding specific facts of a prior crime where the conviction on its face satisfies the aggravating circumstance that the prior crime is relevant to prove. See State v. Bates, 804 S.W.2d 868, 879-80 (Tenn. 1991). Thus, any reference to the prior crime other than to state that it occurred was simply not relevant. In contrast, as previously noted, Kansas allows some evidence of the prior crime to be introduced.
More importantly, the prosecutor’s statement in the case at hand, unlike that in Bigbee, does not argue that Kleypas should be punished for his prior crime but instead argues that the mitigating circumstances put forth by Kleypas should not outweigh the death of Bessie Lawrence. The fact that Kleypas was previously convicted of a felony in which Kleypas inflicted death on another is an aggravating circumstance. K.S.A. 21-4625(1). Thus, the death of Lawrence is an aggravating circumstance, and it was entirely proper for the prosecutor to argue the relative weight of that aggravating circumstance as compared to Kleypas’ mitigating circumstances. The prosecutor did not commit misconduct in this instance.
I. Alleged Misstatement of the Law Regarding the Aggravating Circumstance of Whether Kleypas Committed the Crime to Avoid or Prevent a Lawful Arrest or Prosecution
Kleypas contends that the prosecutor committed misconduct by misstating the law regarding the aggravating circumstance of whether Kleypas committed the crime to avoid or prevent a lawful arrest or prosecution. Kleypas argues that the prosecutor improperly argued to the jury that certain evidence which occurred after the murder could be used to show that Kleypas committed the murder in order to avoid arrest and prosecution.
In arguing that the evidence showed Kleypas committed the murder in order to avoid arrest and prosecution, the prosecutor highlighted evidence that Kleypas knew he would be prosecuted for the rape and that the victim could identify him. The prosecutor also noted that Kleypas started to tie the victim up but then thought better of it and killed the victim instead. FinaUy, the prosecutor stated:
“And the evidence of this is clear not only by the defendant’s own actions and words and not only by what he did to [C.W.] that night but what he did afterwards. He loaded up his truck, taking evidence of the murder with him and fled town. He took off, he ran and he killed [C.W.] so that he could avoid arrest. There is no other conclusion that can be reached from this evidence.”
Evidence that Kleypas loaded up his truck and left town after killing the victim, while definite proof that Kleypas was trying to avoid arrest, does not by itself prove that he in fact killed the victim in order to avoid or prevent arrest for the prior crime of rape. This case is similar to a hard 40 case decided by this court in State v. Reed, 256 Kan. 547, 886 P.2d 854 (1994). Reed attempted to rape a woman and when the attempt failed, killed her and hid the body. The prosecutor in Reed argued that this established the aggravating circumstance of killing to avoid arrest. Reed claimed that this argument constituted prosecutorial misconduct. However, this court disagreed and noted:
“[T]he prosecutor in the above remarks did not identify the crime the defendant committed. While evidence may relate to the defendant’s efforts to conceal his murder of the victim, the same circumstantial evidence also relates to his concealment of kidnapping or attempted rape of the victim and directly bears upon the aggravating circumstance of avoiding or preventing a lawful arrest or prosecution.” 256 Kan. at 566.
The same is true of the case at hand. While evidence that Kleypas left town after the murder does not, standing alone, show that he committed the murder to avoid arrest for rape, it is relevant to this fact. It shows that Kleypas attempted to avoid arrest for not only the murder but the rape and, thus raises the inference that Kleypas committed the murder as part of a plan, along with flight, to avoid arrest for the rape.
Kleypas argues that our analysis in Reed should not apply in this case. First, he contends that the activity in Reed happened before the murder. This is patently incorrect. Reed’s actions in hiding the body occurred postmurder, as did Kleypas’ flight in this case. Second, Kleypas argues that our analysis in Reed should not apply because capital cases require a higher standard. Under any standard, however, the evidence is relevant and, thus, fair game for comment by the prosecution. Given these circumstances, the prosecutor’s comment did not constitute misconduct.
J. Alleged Misstatements of the Law Regarding Evidence to Support the Heinous, Atrocious, or Cruel Manner Aggravating Circumstance
Kleypas argues that the prosecutor also committed misconduct in his argument to the jury by misstating the law regarding what evidence could be used to support the heinous, atrocious, or cruel manner aggravating circumstance. Kleypas contends that the prosecutor improperly told the jury that it could consider the circumstances of the rape in determining whether the murder was com mitted in a heinous, atrocious, and cruel manner in order to satisfy the aggravating circumstance. According to Kleypas, this was a misstatement of the law and constituted misconduct.
The jury was instructed: “Aggravating circumstances are those which increase the guilt or enormity of the offense or add to its injurious consequences which is above and beyond the elements of the crime itself.” Kleypas’ argument is that the attempted rape is not above and beyond the elements of the crime itself, as attempted rape is an element of the crime of capital murder. See K.S.A. 21-3439(a)(4). Therefore, according to Kleypas, it was improper for the prosecutor to argue that the rape could satisfy the aggravating circumstance.
Kleypas’ argument is devoid of merit. A review of the prosecutor’s statements regarding the rape reveals that the prosecutor was not arguing that the fact of the rape itself fulfilled die aggravating circumstance but, rather, was arguing that the violent and brutal manner in which the rape was committed helped to make the killing heinous, atrocious, and cruel by causing serious physical abuse and mental anguish. Thus, the argument was not improper.
K. Cumulative Prosecutorial Misconduct
Kleypas’ final arguments regarding prosecutorial misconduct are that the cumulative misconduct on the part of the prosecutor warrants reversal of the death sentence and that the misconduct was so grievous that he should not again be subject to the death penalty. We consider his first argument, but reject his second argument. Nothing in the record suggests misconduct so grievous as to support a conclusion that Kleypas should not again be subject to the death penalty.
Because we are reversing the defendant’s sentence due to other errors and remanding for a new sentencing hearing, we need not determine whether the cumulative prosecutorial misconduct would be so great as to also require reversal. However, we note that the instances of prosecutorial misconduct were numerous: The prosecutor made an improper and false insinuation that Kleypas would have access to alcohol in prison and, thus, have a trigger for his paraphilia. The prosecutor improperly cross-examined a de fense expert in an attempt to inflame the passions of the jury. The prosecutor violated a motion in limine and improperly tried to insinuate to the jury that prison would be an easy life for the defendant. The prosecutor improperly misstated the law to the jury by implying that mitigating circumstances must excuse or justify the crime to be valid. The prosecutor also improperly urged the jury to disregard mitigating circumstances because they were not causally related to the crime, contrary to Kansas law. The prosecutor flien improperly expressed his belief that Kleypas’ experts were not believable and mischaracterized their testimony in a manner which made it seem that the experts were attempting to hide evidence from the jury. Finally, the prosecutor made up an imaginary script which purported to tell the jury what the victim was feeling as the crime occurred even though there was no evidence as to the victim’s thoughts. Instead, the script was mere speculation on the part of the prosecutor, calculated to inflame the sympathy and passions of the jury.
Many of the instances of prosecutorial misconduct appear to stem from a misunderstanding of the law regarding the imposition of the death penalty and cannot be characterized as intentional. Others, however, would be improper in any proceeding and can only be explained by the pressure put on the prosecutor to secure the death penalty in a high profile case.
As pointed out in our discussion of our standard of review, it is difficult to judge the impact and consequences of the prosecutor’s improper arguments in this case. It must be noted that the comments were just that, comments, rather than jury instructions or rulings made by the court. The juiy was instructed that such arguments were not evidence. This does not mean, however, that they did not have any effect. While none of the instances of prosecutorial misconduct, taken in isolation, may have been so prejudicial to Kleypas so as to require us to reverse his sentence, the net cumulative effect of the prosecutorial misconduct might very well have provided an additional basis for reversal.
Conclusion
Kleypas’ convictions for capital murder, attempted rape, and aggravated burglary are affirmed. His sentences for aggravated bur glary and attempted rape are vacated and remanded for resentencing. His sentence of death for capital murder is vacated, and the matter is remanded with instructions to hold a new capital sentencing hearing. | [
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|
The opinion of the court was delivered by
Abbott, J.:
Appellant Ronald L. Drake brings this appeal under the Kansas Implied Consent Law, K.S.A. 8-1001 et seq. Drake appeals the Barton County District Court’s decision upholding appellee Kansas Department of Revenue’s order suspending his driving privileges for 1 year and asks that the decision be vacated. The case is before this court pursuant to a K.S.A. 20-3018(c) transfer.
Drake testified that, prior to his arrest, he drank four or five beers at Al’s Drive-In, Great Bend, Kansas, between approximately 8 p.m. and midnight. On Saturday, September 19, 1999, Drake was arrested for driving under the influence. Officer Scott Bie berle, of the Great Bend Police Department, smelled the odor of an alcoholic beverage during the traffic stop and again at the sheriff s department. Drake admitted to the officer that he had ingested a few beers. On appeal, Drake does not raise the issue of whether the arresting officer had reasonable grounds to believe he was under the influence.
At the sheriff s department, Bieberle read the implied consent notices to Drake, and then asked him to submit to an Intoxilyzer 5000 breath test. In response to one of the notices provided, Drake asked to speak to an attorney. Bieberle said he could do that later. Drake then agreed to submit to the breath test.
What happened next is contested by the parties. Drake asserts that he blew into the machine, but Bieberle told him he was not blowing hard enough. Drake testified that “I blew into it, and he said you’re not blowing hard enough, and I said that’s as hard as I can blow into it . . . and I said I’ll take it again if you want me to, and I took it again and the same thing happened.” Bieberle’s characterization, on the other hand, was that Drake “didn’t blow into the Intoxilyzer.” Bieberle testified that the Intoxilyzer emits a tone signal to show that a breath sample is entering the device. The tone never sounded during the time period when Bieberle allowed Drake to attempt to provide a breath sample. Bieberle stood right in front of Drake, holding the breath tube with the mouthpiece attached to it during the test. Drake testified he was actually blowing into the tube of the testing machine. Drake also stated that after the attempted test, he was not allowed to consult with an attorney or to seek independent blood alcohol testing.
Bieberle conceded that Drake asked to speak with his attorney and was not taken for independent testing. Bieberle testified that during the time when he was reading Drake the implied consent advisories, Drake asked about “the other test that he could take.” However, Bieberle contradicted Drake’s assertion that he was not allowed to speak with his attorney, stating that he advised Drake there was a pay phone on the wall that he could use to call bis attorney.
The Intoxilyzer’s digital LED reading came back as a “ .000 deficient sample.” Drake was not made aware of the test result. Bieberle did not consider this deficient sample reading of .000 to be a completed test. Bieberle stated that in the past he had allowed persons giving a deficient sample reading with .080 to obtain independent testing. He testified that it was his understanding that the difference between a deficient sample with a .000 reading and a deficient sample with a number attached to it was that the number indicated that the person had introduced air into the machine. However, Bieberle admitted that the machine could read .000 deficient sample if someone who had not been drinking blew in it for a second. The machine does not indicate how much air has been introduced into it. Here, there is no question that Drake had consumed alcohol and could not have registered .000 if he blew into the Intoxilyzer.
After an administrative hearing on November 17, 1999, Drake’s chiving privileges were suspended by the Kansas Department of Revenue pursuant to K.S.A. 2000 Supp. 8-1002(d). Drake appealed the suspension in Barton County District Court pursuant to K.S.A. 2000 Supp. 8-259. Following a hearing, Judge Mike Keeley upheld the Kansas Department of Revenue’s order of suspension. Drake timely appealed the district court’s decision.
RIGHT TO ATTORNEY AND TO SECURE INDEPENDENT TESTING
Drake contends that, under the facts of this case, the trial court’s conclusions of law regarding K.S.A. 2000 Supp. 8-1001(f)(l)(J) and K.S.A. 8-1004 were in error in light of State v. Chastain, 265 Kan. 16, 960 P.2d 756 (1998). Both Drake and the Kansas Department of Revenue assert that this is an issue of law subject to unlimited or de novo review.
In a motor vehicle license suspension case, the standard of review used by the district court is set forth by statute. “In the case of review of an order of suspension under K.S.A. 8-1001 et seq., and amendments thereto . . . [t]he action for review shall be by trial de novo to the court.” K.S.A. 2000 Supp. 8-259. The standard for appellate review is likewise set forth by statute. “Decisions on petitions for judicial review of agency action are reviewable by the appellate courts as in other civil cases.” K.S.A. 77-623. The Kansas Court of Appeals has held that, when reviewing a district court’s decision in a motor vehicle license suspension case, a substantial competent evidence standard of review is proper. Lincoln v. Kansas Dept. of Revenue, 18 Kan. App. 2d 635, 637, 856 P.2d 1357, rev. denied 253 Kan. 859 (1993). Accord Zurawski v. Kansas Dept. of Revenue, 18 Kan. App. 2d 325, 328, 851 P.2d 1385, rev. denied 253 Kan. 864 (1993).
“Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent ... to submit to one or more tests of the person’s blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs.” K.S.A. 2000 Supp. 8-1001(a). In general, a person’s motor vehicle license may be suspended for refusal to submit to testing if: (1) a person is arrested or taken into custody for operating or attempting to operate a motor vehicle while under the influence of alcohol or drugs or both, or was involved in a motor vehicle accident or collision resulting in property damage, injury, or death; (2) before tests are administered, the person was given oral and written notices of the consequences of testing and refusal; (3) a law enforcement officer requested the person to submit to testing; and (4) the person refused to submit to testing. See K.S.A. 2000 Supp. 8-1002(a)(1); K.S.A. 2000 Supp. 8-1001. If a person refuses a test, the person’s driving privileges will be suspended for at least one year. See K.S.A. 2000 Supp. 8-1001(f)(l); K.S.A. 2000 Supp. 8-1014(a).
If, however, a person complies with testing as requested, certain rights are triggered under the statute both for the State and for the accused. First, the State may use the test results against a person during any trial on a charge of driving under the influence. Second, “after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from medical care facilities and physicians.” K.S.A. 2000 Supp. 8-1001(f)(l)(J); see K.S.A. 8-1004.
Here, Drake was arrested for operating a motor vehicle while under the influence of alcohol or drugs. He was taken to the sheriff s department where he was advised of the consequences of test ing and refusal, and he was asked to submit to an Intoxilyzer breath test. Bieberle testified that during the time when he was reading Drake the implied consent advisories, Drake asked about “the other test that he could take.” Both Drake and Bieberle testified that Drake asked to speak with his attorney. Thus, Drake did not waive either of the rights granted to him under K.S.A. 2000 Supp. 8-1001(f)(l)(J).
The issue at the heart of this case is whether Drake’s actions constituted a refusal to submit to testing. We, therefore, must examine the record to see whether substantial competent evidence exists to support the district court’s findings in that regard.
The district court found that Drake “never provided a sufficient breath sample when he blew into the machine, or did not blow into the machine, whichever evidence you choose to believe, to provide a tone on the breathalyzer machine.” Because Drake admitted to ingesting alcohol and had the odor of alcohol on his breath, but the machine recorded .000, the court believed this to be an indication that Drake did not introduce his breath into the machine. Therefore, the court ruled that Drake refused the breath test, was not entitled to additional testing, and upheld the suspension imposed by the Kansas Department of Revenue.
A. Failure to provide a sufficient breath sample.
“ ‘Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, “substantial evidence” is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.’ ” In re Estate of Reynolds, 266 Kan. 449, 461, 970 P.2d 537 (1998) (citing Tucker v. Hugoton Energy Corp., 253 Kan. 373, 377, 855 P.2d 929 [1993]).
Here, the record establishes that Drake went through the motions of submitting to the requested Intoxilyzer test. At Bieberle’s request, Drake agreed to submit to a breath test. Bieberle testified: “First, he said he wouldn’t. Then he — after a short hesitation, he said he would take the test.” Drake indicated that he attempted to introduce air into the machine two times. Drake testified that “I blew into it, and he said you’re not blowing hard enough, and I said that’s as hard as I can blow into it . . . and I said I’ll take it again if you want me to, and I took it again and the same thing happened.” Bieberle testified the tone never sounded on the Intoxilyzer during the time period when he allowed Drake to attempt to provide a breath sample. The Intoxilyzer’s digital LED reading came back as a “.000 deficient sample.”
Substantial competent evidence exists under these facts to find that Drake did not provide a sufficient breath sample during the Intoxilyzer test. In Kansas, under Chastain, even if a person provides an inadequate breath sample, so long as he or she submitted to testing, that person retains the right to seek independent testing and to present proof of his or her physical inability to blow into the breath test device at a later time. “[A] person who provides an inadequate breath sample is still entitled to an independent test under the provisions of K.S.A. 8-1004.” Chastain, 265 Kan. at 19. In addition, under the language of the K.S.A. 2000 Supp. 8-1001(f)(l)(J), so long as a person does not refuse to submit to testing, he or she has the right to consult an attorney. Here, Drake underwent the breath test, but did not provide a sufficient breath sample. In Chastain, this court found no merit in the State’s assertion that a defendant’s deficient sample cut off the right to independent testing. 265 Kan. at 19.
B. Failure to blow into the machine.
When referring to tests to determine the presence of alcohol or drugs, K.S.A. 2000 Supp. 8-1001(f) repeatedly refers to the requirement that a person “submit to and complete” one or more tests. K.S.A. 2000 Supp. 8-1001(f)(l)(J) states that “after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing . . . .” (Emphasis added.) If Drake did not blow into the breath test machine, then the test procedure was never completed. In that situation, Drake would not have the right to consult with an attorney or to secure independent testing.
Drake testified he was actually blowing into the tube of the testing machine. He offered to take the test again after Bieberle told him he was not blowing hard enough. On the other hand, Bie berle’s characterization of what happened, based on his knowledge of the machine, was that Drake “didn’t blow into the Intoxilyzer.”
Bieberle relied on the indications from the machine. He noted that the tone never sounded during the time period when he allowed Drake to attempt to provide a breath sample. In addition, the Intoxilyzer’s digital LED reading came back as a “.000 deficient sample.” Bieberle testified that it was his understanding that the difference between a deficient sample with a .000 reading and a deficient sample with a number attached to it was that the number indicated that the person had introduced air into the machine. The machine never indicates how much air has been introduced into it.
The Commonwealth of Pennsylvania places the burden of proof in regard to the introduction of air into a breathalyzer squarely on the defendant. In Bureau of Traffic Safety v. Jones, 38 Pa. Commw. 400, 395 A.2d 592 (1978), the court held that a defendant’s testimony that she “attempted in good faith to blow into it” constituted legally insufficient proof that she was physically unable to take the test. 38 Pa. Commw. at 405. In Brinkerhoff v. Bureau of Traffic Safety, 59 Pa. Commw. 419, 430 A.2d 338 (1981), after the defendant, a 67-year-old man, repeatedly failed to introduce sufficient air into the breathalyzer, the court upheld the police officers’ determination that this was a refusal to submit to the test. 59 Pa. Commw. at 421-22. The court held that “competent evidence in such a case requires supportive medical evidence of the defendant’s incapacity.” 59 Pa. Commw. at 422.
In Chastain, the arresting officer gave the defendant a breath test at the police station, but the defendant “was unable to blow a sufficient amount of air into the machine.” 265 Kan. at 18. As a result, the machine registered a deficient sample with a .210 concentration of alcohol. The State argued there that under K.S.A. 1994 Supp. 8-1001(f)(2), a person’s failure to provide an adequate breath sample constituted a refusal, with the result that no additional testing was allowed unless he or she could show the failure was caused by physical inability. This court disagreed, stating:
“While an accused who refuses the arresting officer’s test may not be eligible for independent testing under K.S.A. 8-1004, an accused who submits to the requested breath test but blows an inadequate sample retains his or her right under the provisions of K.S.A. 8-1004. Even though under the provisions of K.S.A. 1994 Supp. 8-1001(f)(2), the blowing of an inadequate sample may constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs, the opportunity for the accused to show such a medical condition for his or her inability may not be demonstrated until a later time. Thus, a person who provides an inadequate breath sample is still entitled to an independent test under the provisions of K.S.A. 8-1004.” Chastain, 265 Kan. at 19.
The Kansas Implied Consent Law provides a remedy in the event a person is not given the reasonable opportunity to obtain independent testing. Under K.S.A. 8-1004, “[i]n case the officer refuses to permit such additional testing, the testing administered pursuant to K.S.A. 8-1001 and amendments thereto shall not be competent in evidence.” In this case, the breath test results were never admitted as evidence of Drake’s intoxication. Nevertheless, the Intoxilyzer reading of .000 was used by the district court as evidence that Drake did not blow into the machine. Under K.S.A. 8-1004, the district court erred when it considered the test result as competent evidence. See State v. Gray, 270 Kan. 793 , Syl. ¶ 2, 18 P.3d 962 (2001) (noting that if a person consents to requested tests, but additional testing is not allowed by police, suppression of any reference to testing is the proper remedy).
The district court’s use of the test result constitutes harmless error, however. “[A]n error which does not prejudice the substantial rights of a party affords no basis for reversal of a judgment and may be disregarded.” Smith v. Printup, 262 Kan. 587, 603, 938 P. 2d 1261 (1997). At the July 18, 2000, hearing, Drake was given the opportunity, but failed to present any evidence that his failure to blow into the Intoxilyzer was due to physical inability caused by a medical condition. The lack of evidence of a physical or medical condition that kept Drake from producing a sufficient breath sample, coupled with Bieberle’s testimony that Drake “didn’t blow into the Intoxilyzer” provides sufficient evidence to support the district court’s conclusion that Drake willfully failed to blow into the breath test machine.
C. The ruling of the district court in favor of the Kansas Department of Revenue.
Drake argues that because he submitted to testing, but was denied the opportunity to exercise the statutory privileges granted under K.S.A. 2000 Supp. 8-1001(f)(l)(J), the order suspending his license should be vacated. His argument is unconvincing.
In Chastain, a person’s failure to provide an adequate breath sample did not automatically constitute a refusal to submit to testing that would preclude that person from obtaining independent testing. Here, the district court failed to distinguish between a person who provides an inadequate breath sample and a person who willfully neglects to blow into the Intoxilyzer and, thus, fails to complete the requested test. “[A] trial court’s reason for its decision is immaterial if the ruling is correct for any reason. [Citation omitted.]” KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 110, 118, 936 P.2d 714 (1997). As discussed, a test is not completed if a person willfully refuses to introduce air into the machine. Because the record contains sufficient evidence to conclude that Drake willfully failed to blow into the device, we must conclude that, under these facts, the requested breath test was never completed.
Thus, Drake’s rights under K.S.A. 2000 Supp. 8-1001(f)(l)(J) were never triggered or compromised. If a trial court reaches the right result, its decision will be upheld even though the trial court relied upon the wrong ground or assigned erroneous reasons for its decision. Bergstrom v. Noah, 266 Kan. 847, 875-76, 974 P.2d 531 (1999). The district court’s ultimate decision to uphold the Kansas Department of Revenue’s 1-year suspension of Drake’s license was correct.
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|
The opinion of the court was delivered by
Davis, J.:
Brian Betts appeals from his conviction of premeditated first-degree murder in the death of Greg Miller. He contends (1) the trial court erred in denying his motion for a new trial following the recantation of the primary witness against him, (2) the court erred in admitting evidence in certain hearsay testimony, (3) the prosecutor committed misconduct during closing arguments, (4) the court erred in denying him a continuance after the revelation of exculpatory evidence requiring further investigation, (5) the prosecutor knowingly presented perjured testimony, (6) the court erred in denying his motion for new trial based on ineffective assistance of counsel, (7) the trial court failed to follow the proper procedure in answering questions posed by the jury, and (8) the court erred in overruling his objection to the prosecutor’s peremp tory strikes of jury members. Finding no reversible error, we affirm.
Brian Betts, Celester McKinney, and Celester s brother, Dwayne McKinney, were all charged with the first-degree premeditated murder of Greg Miller. Based upon a pretrial motion to sever, the defendant and the McKinney brothers were granted separate trials. Defendant Betts was found guilty, and we deal with his appeal in this case. Celester McKinney was also found guilty, and on appeal his conviction was affirmed by this court in State v. McKinney, No. 83,217, filed this date. Dwayne McKinney was found not guilty.
The major players involved in this appeal are Brian Betts and Celester and Dwayne McKinney. The main witness for the prosecution was Carter Betts, who is the uncle of the three codefendants. Jimmy Spencer, Jr., uncle of the victim, also testified on the part of the State. Other witnesses who testified at trial are identified below.
In the early morning hours of December 29, 1997, police in Kansas City, Kansas, responded to a report of shots fired and found Greg Miller’s body. Greg had been shot 18 times with both a shotgun and a rifle. A trail of blood ran to the body. Spent 12-gauge shotgun shells and empty rifle shell casings were found near the body.
Alfred Burdette, Jr., the person who reported the shots, testified he heard the gunshots at approximately 3 a.m. He looked outside and saw a person walking and firing a gun. Another person on the other side of the street was also firing. At first, Burdette thought the persons were shooting at each other, but then he noticed they both ran off together in the same direction. Burdette testified at trial that he saw one of the shooters enter the rear gate at 2917 N. 5th. The person went to the door, hesitated, and then went in. Officer Keto Thompson was one of the responding officers. Officer Thompson testified that he talked to Burdette. According to Officer Thompson, Burdette said the person went between the houses, but Burdette did not know whether the person had actually entered the house in question.
Brian Betts resided at 2119 N. 5th with his uncle, Carter Betts. The defendant lived in an apartment at the residence with a separate entrance, while Carter, Celester McKinney, and Dwayne McKinney lived in the main part of the house.
Carter provided the testimony finking the defendant to the crime. Celester and Dwayne were cleaning a building on the night in question and returned home between 11:30 p.m. and midnight. Carter went to sleep but was awakened at approximately 3 a.m. by gunshots. He testified he then heard the front door open and close. He went downstairs to investigate and found the defendant, Dwayne, and Celester. A pistol grip shotgun and an assault rifle lay at the feet of Dwayne and the defendant.
According to Carter, he asked what happened and Celester replied that they “shot that Greg cat.” Carter stated that Celester did most of the explaining, although the defendant and Dwayne also interjected comments. Celester explained to Carter that they suspected Greg, the victim, broke into and burglarized the defendant’s apartment. Celester stated the defendant and Dwayne were looking for Greg but could not find him, so Celester went to his house to urge him to come out. When Greg denied having broken into the defendant’s apartment, Dwayne raised a gun to shoot him. However, the gun jammed and Greg began to run away. Celester told Dwayne and the defendant to stop him because they could not let him five to be a witness. Dwayne and the defendant began firing and their shots knocked Greg down. Celester told Carter that the defendant then went over and finished Greg off. According to Carter, the defendant also confirmed that he stood over Greg and shot him. Carter testified the defendant later told him they had gotten rid of the guns.
Carter testified that when the police questioned him regarding the incident, he told them his nephews had been in bed asleep at the time the shots were fired. Later, however, the police questioned him at the station and he changed his story. Carter stated that his family was split over his testifying against his nephews. Near the end of the testimony, he began to cry. Under cross-examination, Carter testified that he and the defendant had a disagreement because the defendant thought Celester had broken into his apartment and Carter was protecting Celester by telling the defendant that Celester was with him when the break-in occurred. However, according to Carter, the defendant and he had resolved their differences by the time of the shooting.
Jimmy Spencer, Jr., Greg Millers uncle, also provided information linking the defendant to the crime. Spencer stated that he woke up around 3 a.m. in order to get something to eat, and found that the soda pop that he had put in the refrigerator was gone. He woke Greg, who was living with him, and asked him if he had taken the soda pop. Greg confirmed that he had. Spencer sent Greg out to buy a soda pop from a nearby machine. When Greg returned, he told Spencer that a person named Les wanted to talk to him. Spencer testified he thought Greg was referring to the defendant as Les. Greg left to find out what Les wanted. Spencer stated he heard gunshots a few minutes later. He looked out the window and saw someone shooting toward the ground. Spencer dressed and went to investigate whereupon he found Greg’s body. Soon after, the police arrived.
The other evidence linking the Betts’ household to the crime came from a member of Greg’s family who told police that a person named Les was involved.
The defendant presented an alibi defense. He testified he was asleep in bed with his fiancee and baby son when he heard the shots. The defendant stated he and Carter had many disputes over many things, including the break-in at his apartment, and that he did not associate with Carter, Celester, or Dwayne. The defendant also presented the testimony of his fiancee, who indicated the defendant was in bed when die shooting occurred, and that of his mother, who testified the defendant and Carter had quarreled over the defendant’s pay from Carter’s cleaning business.
The jury convicted the defendant of premeditated first-degree murder on August 21, 1998. The defendant filed a motion for new trial, arguing that Carter had recanted his trial testimony. The motion also alleged 11 other grounds for a new trial including: (1) the State had violated his constitutional rights by suborning the perjury of Officer Keto Thompson, Spencer, and Carter; (2) the State had failed to provide the defendant with exculpatory evidence including Carter’s retraction and Spencer’s criminal record; (3) the court erred in severing the trials of the codefendants; (4) the court had erroneously denied the defendant’s Batson objection; (5) the court had erred in allowing Carter’s hearsay testimony; (6) the prosecutor had committed misconduct in closing argument; (7) the court had not properly instructed the jury as to lesser included offenses; (8) the court had not properly read back testimony to the jury; (9) the court had not properly responded to questions asked by the jury; (10) the defendant was denied effective assistance of counsel; and (11) the verdict was contrary to the evidence and the law.
The district court held a hearing on the motion for a new trial. Carter testified his statement to police was untrue and he did not know anything about the murder of Greg because he was asleep when the shooting occurred. According to Carter, he made up the statements of his nephews because police told him they already knew Celester and Dwayne were involved, and that three persons were seen entering his house following the shooting. Carter thought the police were suspicious that he might be the third person. He also felt pressured by the community and the police. Carter testified that Detective Smith said he would be charged if he did not tell the police what he knew and Smith also informed him as to what guns were used.
Carter testified he later told the police that his statement was untrue but they insisted he testify. He stated that Prosecutor Dan Cahill met with him before the preliminary hearing and instructed him as to what his story should be, as well as what to say to avoid the hearsay rule. When he told Cahill he did not want to testify, Cahill threatened him with prosecution.
The testimony then moved to the defendant’s allegation that he had received ineffective assistance of counsel from his trial attorney, Mark Sachse. Sergeant Charles Patrick testified jail records indicated Sachse had made two visits to the defendant between February and September of 1998, one for 15 minutes and another for 25 minutes. Again, the defendant’s trial was in August 1998.
Della Betts, the defendant’s aunt, stated she had planned to testify on the defendant’s behalf at trial but Sachse told her she should not testify because she would be a bad witness due to a bad check issue. Della stated that she would have testified that Carter told her he had no idea about the shooting and that one of the witnesses, Alfred Burdette, was a drunk. Della testified that she discussed this testimony with Sachse.
Ellen Lenard, the defendant’s mother, testified that she visited Sachse approximately six times. She told Sachse of possible witnesses including her own mother, Mary Mitchell; her sister, Norma Jean Meeks; and Della Betts. She stated she pressed Sachse to file a motion for discovery but he told her such a motion was not necessary. She also informed Sachse that Burdette was a drunk.
The defendant testified that he met with Sachse one time prior to his prefiminary hearing when Sachse urged him to take a plea. Later, Sachse visited him prior to trial and told him that he did not file a motion for discovery because he did not want to make tire district attorney mad. The defendant testified that Sachse visited him the week before trial when Sachse told him to make a list of witnesses he wanted to call.
The defendant stated he wanted Sachse to call his grandmother, Mary Mitchell, to testify regarding problems and lack of affiliation with Carter, Dwayne, and Celester. He wanted to call Della Betts, and also Norma Jean Meeks, who would testify that Carter told her he lied to the police. He wanted to call another aunt, Lori Betts, and also Jesse Brochovich, both of whom would have testified that Carter told her Celester and Dwayne were asleep at the time of the shooting. Further, he wanted to call Detective Golubskie, who is married to the victim’s aunt, to testify that he, Golubskie, had leaked certain confidential information to the victim’s family. Finally, he wanted to call Andrea Burdette, daughter of Alfred Burdette, to testify that her father was an alcoholic and did not witness the shooting. However, according to the defendant, Sachse stated he did not want anyone to testify on the defendant’s behalf.
The defendant testified that he sent Sachse letters on several different occasions, but Sachse did not respond or accept his telephone calls. The defendant also claimed he was unable to talk to Sachse during trial and that Sachse did not prepare him to testify. Sachse never revealed the information in the police report to him, nor did Sachse explain what his theory of defense would be. He also asked Sachse to investigate the crime scene but Sachse did not do so.
Sachse testified concerning his representation of the defendant. Sachse stated that he had tried approximately 130 jury trials prior to that of the defendant, with the vast majority of those being criminal, including eight murder cases. Sachse noted that he had actually been appointed twice in this case. The first time he managed to get the case dismissed at preliminary hearing. After charges were refiled, the defendant’s family hired an attorney, who withdrew prior to trial. Sachse was reappointed.
Sachse stated he met with the defendant three or four times prior to trial and also met several times with the defendant’s mother and family members. He also went to the crime scene and after reviewing the scene, decided it was in the defendant’s best interest that the crime scene not be fully explained to the jury. With regard to discovery, he stated he was able to review the prosecutor’s entire file. Although the defendant’s mother pushed him to file a discovery motion, he explained to her that a discovery motion was not necessary because the State’s entire file was available to him and provided more information than would be available under a discovery motion. Sachse admitted he did not file any pretrial motions but stated he believed none were necessary. By the time he entered the case for the second time, the case had already been severed from those of the codefendants.
With regard to his trial strategy regarding the calling of witnesses, Sachse stated he felt the key to the defense was to discredit Carter’s testimony. Although the family wanted him to call the defendant’s grandmother, Mary Mitchell, he discovered she did not want to testify and that she believed Carter was telling the truth. Sachse stated he did not want to call Della Betts because she had a dispute with Carter resulting in criminal charges being filed against her and also had a conviction which involved her veracity. He testified he did not want to put the defendant’s aunt, Patricia Betts, on the stand because there was a note in the file that one of her sons, Celester or Dwayne, had called her and admitted being involved in the murder. When asked about a person named Robert Law, Sachse testified that neither the defendant nor the family told him about Law and, further, that Law would not have been a good witness because he was facing capital murder charges at the time of trial.
Sachse stated he advised the defendant not to testify, although the defendant did so. He also put the defendant’s fiancee on the stand at the defendant’s insistence, although the defendant had written a letter to her with lyrics from a rap song talking about shooting someone for stealing.
Sachse testified that much of the evidence the defendant’s mother wanted him to present would not have been helpful to the case. Because Sachse’s theory denied the defendant’s involvement and placed the blame on Celester and Dwayne, it was important that Alfred Burdette’s testimony be considered credible, as Burdette saw two people, not three, shooting the victim.
Sachse admitted he did not give an opening statement at trial. However, he testified he often does not do so when there is a chance his witnesses will testify differently than he expects.
On cross-examination, Sachse was confronted with the log book which detailed only two visits to the defendant. Sachse stated that he disagreed with the log book, and noted that the keeping of the book by the sheriff s office was done inconsistently. Sachse testified that in his opinion, he communicated sufficiently with the defendant to put on a competent defense. He stated he fully explained his strategy to the defendant.
The trial court ultimately found Carter’s recantation was not credible. With regard to the defendant’s claim of ineffective assistance of counsel, the trial court held that Sachse’s performance was not deficient and that most of the allegations related to trial strategy. The trial court rejected all other arguments of defendant and denied his motion for new trial.
Denial of New Trial-Recanted Testimony of Carter Betts
Carter’s testimony not only linked the defendant to the crime but provided the basis for the defendant’s conviction. Without his testimony, there would have been no evidentiary basis for the defendant’s murder conviction. After trial, Carter recanted his trial testimony; thus, Carter provided the defendant with new evidence which, if believed, would leave the State with very little evidence to connect the defendant to the crime. The trial court, following the hearing of the defendant’s motion for a new trial, concluded that Carter’s recantation was not credible and provided no basis for a new trial.
K.S.A. 22-3501 provides a court may grant a motion for a new trial based on the ground of newly discovered evidence. Two requirements must be met before a trial court will grant a defendant’s motion for new trial based upon newly discovered evidence. First, the defendant must establish that the newly proffered evidence is indeed “new,” in that it could not, with reasonable diligence, have been produced at trial. Second, the evidence must be of such materiality that there is a reasonable probability that the newly discovered evidence would produce a different result upon retrial. State v. Moncla, 269 Kan. 61, 64, 4 P.3d 618 (2000). The granting of a new trial is a matter within the discretion of the trial court. State v. Reed, 256 Kan. 547, 560, 886 P.2d 854 (1994).
While the State argues that the recanted testimony of Carter was not newly discovered evidence primarily because the defendant knew Carter’s trial testimony was false at the time given, it is clear that until Carter recanted his testimony after trial, the defendant could not have known about the recanted testimony. We conclude that the recanted testimony of Carter was newly discovered and could not, with reasonable diligence, have been produced at trial.
New trials on grounds of newly discovered evidence are not favored and such motions are to be viewed with caution. State v. Thomas, 257 Kan. 228, Syl. ¶ 2, 891 P.2d 417 (1995).
The standard applied by the trial court for granting a new trial based on recanted testimony is well established. Where a new trial is sought on the basis of recanting testimony of a prosecution witness, the weight to be given such testimony is for the trial court passing on the motion for a new trial to determine. The trial court is required to grant a new trial only when he or she is satisfied the recantation of the witness’ testimony is true and material. Appellate review of an order denying a new trial is limited to whether the trial court abused its discretion. See State v. Norman, 232 Kan. 102, 109, 652 P.2d 683 (1982).
In this case, after a full hearing upon the defendant’s motion for a new trial, the trial court determined that Carter’s recantation was not credible. The record supports this determination and at the very least fails to support the conclusion that no reasonable person would agree with the trial court’s decision. Shepherd, 232 Kan. at 619. The defendant fails to establish an abuse of discretion and the trial court’s denial of the defendant’s motion for new trial stands.
Perjured Testimony
The defendant claims the prosecutor presented perjured testimony requiring this court to reverse his murder conviction. A conviction obtained by the introduction of perjured testimony violates a defendant’s due process rights if (1) the prosecution knowingly solicited the perjured testimony, or (2) the prosecution failed to correct testimony it knew was perjured. Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959). However, the evidence fails to support a conclusion that perjured testimony was presented at trial. Instead, the trial court concluded with ample evidentiary support that Carter’s recantation was not credible and that his trial testimony was credible. Under these circumstances, the defendant fails to establish that the prosecutor presented perjured testimony.
Hearsay Statements
Carter, over objection, was allowed to testify as to Celester’s explanation of the crime. The defendant argues that the admission of the statements under the guise of adoptive admissions violated his due process rights and his rights under the Confrontation Clause of the United States Constitution.
The trial court found Celester’s statements to Carter were admissible against the defendant as adoptive admissions under K.S.A. 2000 Supp. 60-460(h)(2). This exception applies to statements “of which the party with knowledge of the content thereof has, by words or other conduct, manifested the party’s adoption or belief in its truth.” K.S.A. 2000 Supp. 60-460(h)(2). Through this excep tion, an incriminating statement of a third person, which an accused has admitted to be true, is admissible in evidence against the accused as his or her own statement by adoption. State v. Buckner, 223 Kan. 138, 145, 574 P.2d 918 (1977). This exception also allows the admission, under certain circumstances, of statements to the prejudice of the accused, made in his or her presence, and tolerated without resentment, explanation, or denial by the accused. Buckner, 223 Kan. at 145; State v. Ritson, 210 Kan. 760, 763-64, 504 P.2d 605 (1972).
The evidence in this case, according to Carter, established that the defendant heard Celester’s explanation of the events surrounding the shooting, agreed with it, and interjected several comments. Thus, if Carter’s testimony is credible, the defendant “manifested by words or other conduct” his adoption of Celester’s statements.
In order for such adoptive silence statements to be admissible, the evidence must disclose that: (1) the statement was extrajudicial, (2) it was incriminatory or accusative in import, (3) it was one to which an innocent person would in the situation and surrounding circumstances naturally respond, (4) it was uttered in the presence and hearing of the accused, (5) the accused was capable of understanding the incriminatory meaning of the statements, (6) the accused had sufficient knowledge of the facts embraced in the statement to reply thereto, and (7) the accused was at liberty to deny it or reply thereto. Ritson, 210 Kan. at 763-64. Celester’s statements to Carter met each of the above requirements.
The defendant further argues that the trial court’s failure to require a showing of particularized guarantees of trustworthiness rendered the hearsay statements and adoptive admissions inadmissible. In State v. Bratt, 250 Kan. 264, Syl. ¶ 1, 824 P.2d 983 (1992), based upon the United States Supreme Court’s decisions in Idaho v. Wright, 497 U.S. 805, 111 L. Ed. 2d 638, 110 S. Ct. 3139 (1990), and Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 107 S. Ct. 2531 (1980); this court said:
“Tlie Confrontation Clause operates in two ways when determining the admissibility of hearsay statements. First, the Sixth Amendment establishes a rule of necessity. In the usual case, the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Second, once a witness is shown to be unavailable, the witness’ statement is admissible only if it bears adequate indicia of reliability. Reliability can be inferred where the evidence falls within a firmly rooted hearsay exception. If the evidence does not fall within a firmly rooted hearsay exception, the evidence must be excluded absent a showing of particularized guarantees of trustworthiness.”
Thus, the defendant is correct in his argument that the Confrontation Clause can operate to bar admission of evidence and adoptive admissions that would otherwise be admissible under an exception to the hearsay rule if its requirements are not met. See Bratt, 250 Kan. at 270. However, the defendant’s argument erroneously assumed that the statements as well as the adoptive admissions in this case are not within a“firmly rooted hearsay exception.”
More specifically, the defendant argues that absent a determination by the trial court that the statements had adoptive admission by the defendant’s conduct and were admissible as being within a “firmly rooted hearsay exception,” the trial court was obliged to consider whether the statements bore particularized guarantees of trustworthiness, which it did not do. However, although Kansas has not specifically addressed this question, those states which have done so have concluded that the hearsay exception for adoptive admissions, including admissions by silence, is a firmly rooted hearsay exception. See State v. Lawson, 23 Conn. App. 358, 363, 580 A.2d 87 (1990); Commonwealth v. Babbitt, 430 Mass. 700, 706-07, 723 N.E.2d 17 (2000); State v. Marshall, 113 Wis. 2d 643, 655, 335 N.W.2d 612 (1983). In Babbitt, the Massachusetts Supreme Court noted that not only is the exception at least 2 centuries old, but the Federal Rules of Evidence classify adoptive admissions among those statements which do not constitute hearsay at all. 430 Mass. at 707.
We conclude that the hearsay exception under K.S.A. 2000 Supp. 60-460(h)(2) for adoptive admissions, including admissions by silence, is a firmly rooted hearsay exception. Thus, it was not incumbent on the trial court to determine whether the statements bore particularized guarantees of trustworthiness. The statements were properly admitted into evidence as adoptive admissions under K.S.A. 2000 Supp. 60-460(h)(2).
Prosecutorial Misconduct
The defendant’s third contention is that the prosecutor committed misconduct during closing arguments. He contends the prosecutor improperly put words into his mouth during closing argument and violated his rights.
Our standard of review with regard to prosecutorial misconduct is well established. An appellate court’s analysis of the effect of a prosecutor’s allegedly improper remarks in closing argument is a two-step process: First, the appellate court must determine whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. Second, the appellate court must determine whether the remarks constituted plain error; that is, whether they were so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial. In order to find that the remarks were not so gross or flagrant, the court must be able to find that when viewed in light of the record as a whole, the error had little, if any, likelihood of changing the result of the trial. State v. McCorkendale, 267 Kan. 263, 278-79, 979 P.2d 1239 (1999).
“It is the duty of a prosecutor in a criminal matter to see that the State’s case is properly presented with earnestness and vigor and use every legitimate means to bring about a just conviction, but he should always bear in mind that he is an officer of die court and, as such, occupies a quasi-judicial position whose sanctions and traditions he should preserve. [Citation omitted.]” State v. Ruff, 252 Kan. 625, 634, 847 P.2d 1258 (1993).
During closing arguments, the prosecutor stated:
“Think about Carter Betts, think about what he told you, think about whether die defendant’s story made sense. Remember what he said. Family’s family. I can tell my Uncle Carter about a murder and I expect him to cover for me. They attack Carter, is diat surprising? It’s the only diing diey can do.” (Emphasis added.)
The defendant did not object to the above statement. Kansas does not ordinarily apply the plain error rule, and reversible error normally cannot be predicated upon a complaint of misconduct by the prosecutor during closing argument where no contemporane ous objection is lodged. However, if the prosecutor’s statements rise to the level of violating a defendant’s right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection. McCorkendale, 267 Kan. at 278.
The defendant did not state he could tell Carter about a murder and expect Carter to cover for him. He implicitly stated he did not think Carter would cover for him if he committed a murder. However, a reading of the statement in context shows that the prosecutor was not alleging the defendant actually said such a thing but, instead, made an inference from the defendant’s testimony that “family’s family.” A prosecutor may draw reasonable inferences from the evidence, although he or she may not comment upon facts outside the evidence. State v. McCray, 267 Kan. 339, 351, 979 P.2d 134 (1999).
The defendant argues that if the statement by the prosecutor was unintentional, jurors are not seasoned legal experts and might have believed he did make the statement that his uncle would cover for him. He argues that either way, such a statement was prejudicial.
It is true the prosecutor’s statement was not artfully phrased and should have been avoided. However, it is not possible to say that it was outside the wide latitude given prosecutors to argue the evidence. Further, even if it might be considered misconduct, it was not so prejudicial as to affect the defendant’s right to a fair trial. The jury heard the defendant’s testimony and cross-examination and was cautioned that the prosecutor’s statements were not evidence. Under these circumstances, there was no reversible error.
Failure to Grant a Continuance
The defendant claims the trial court erred in denying him a continuance to investigate allegedly exculpatory evidence. In the middle of the trial, the prosecution notified the defendant’s counsel that Jimmy Spencer, uncle of the victim, had been told by his sister that Detective W.K. Smith told Spencer’s sister there were three weapons involved in the crime; two automatic rifles and a shotgun. Defense counsel wanted to cross-examine Spencer regarding this statement but the prosecutor objected on the basis of hearsay. Defense counsel stated the statement would not be hearsay because it would not be presented to show that the guns were used, but would be presented to show knowledge of the types of weapons used were available to members of the public. The purpose would be to counteract any argument that the only way Carter could have known what weapons were used in the shooting was if his nephews told him what weapons they used. A long and convoluted argument followed. Eventually, the court determined that the statement was hearsay and because there was no evidence the information was available to Carter, the statement could not be used. The defendant requested a continuance in order to have an opportunity to interview Detective Smith. However, the court found that Detective Smith was out of town and unavailable. Further, because Spencer’s sister denied being told by Smith of the guns used, the motion for continuance was denied.
The defendant contends the continuance should have been granted, citing Giglio v. United States., 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972). In Giglio, the United States Supreme Court held that the suppression of material evidence affecting the credibility of a witness justifies a new trial irrespective of the good faith or bad faith of the prosecution. 405 U.S. at 153-54. The defendant contends the information from Spencer was exculpatory and, therefore, it was error for the trial court to deny a continuance to investigate it.
In a criminal case, the granting or denying of a motion for continuance is within the discretion of the trial court. State v. Stallings, 262 Kan. 721, 726, 942 P.2d 11 (1997). Prosecutors have a positive duty to disclose exculpatory evidence to the defendant. State v. Wilkins, 269 Kan. 39, 42, 5 P.3d 520 (2000). Where the prosecution fails to disclose exculpatory evidence in a timely manner, the proper remedy is to grant a continuance to allow the defendant time to investigate the evidence. State v. Nuessen, 23 Kan. App. 2d 456, 462, 933 P.2d 155 (1997).
The defendant alleges that the evidence in this case was exculpatory because it rebutted the prosecution’s assertion that Carter was telling the truth as he knew what weapons were used and could only have gotten that information from someone associated with the crime such as the defendant. However, the materiality of the evidence is seriously in doubt. The simple fact that a detective might have told a member of the victim’s family that certain weapons were used, standing on its own, is insufficient to establish any kind of an inference that the defendant might have been informed of the weapons used. Any investigation by the defendant would necessarily be a fishing expedition to try to establish a link. Further, contrary to the defendant’s assertion, there was never any real argument by the prosecutor that Carter’s only source of information could have been his nephews. While the defendant argues that the prosecutor finished his closing argument making that point, a review of the closing argument reveals that this was not the case. Under the circumstances, it cannot be said that the trial court abused its discretion in denying the motion for continuance.
Ineffective Assistance of Counsel
The defendant argues his trial counsel, Mark Sachse, provided ineffective representation. The defendant alleges that his counsel failed to interview and call certain witnesses to confer with him in any reasonable way prior to trial, to make an opening statement, and to file any pretrial motions. Further, the defendant argues Sachse elicited potentially incriminating statements on cross-examination, and failed to properly object to closing arguments or the treatment of jury questions.
We have held that before counsel’s assistance is determined to be so defective as to require reversal of a conviction, a defendant must establish: (1) Counsel’s performance was deficient, which means counsel made errors so serious that counsel’s performance was less than that guaranteed by the Sixth Amendment, and (2) the deficient performance prejudiced the defense, which requires showing counsel’s errors were so serious they deprived the defendant of a fair trial. State v. Sperry, 267 Kan. 287, 297, 978 P.2d 933 (1999). Judicial scrutiny of counsel’s performance in a claim of ineffective assistance of counsel must be highly deferential. There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. 267 Kan. at 298. To show prejudice, the defendant must show a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. 267 Kan. at 298. The performance and prejudice prongs of the ineffective assistance of counsel inquiry are mixed questions of law and fact, requiring de novo review. 267 Kan. at 297.
The defendant complains that Sachse should have called Della Betts, Lori Betts, Norma Meeks, Clintel Betts, Robert Law, Detective Golubskie, Andrea Burdette, and Dave Thomas to testify on his behalf. The defendant claims Della Betts would have testified that Carter told her he had no knowledge of the murder. However, Sachse explained that Della’s testimony would have been undercut by her problems with the legal system and her obvious bias against Carter. The defendant stated at the hearing that Lori Betts would testify Carter told him he was asleep at the time of the shooting and saw nothing. It is difficult to see what this testimony would have accomplished as Carter told the police the same story. The defendant argues that Norma Meeks would have possibly testified that Carter told her he lied to the police. This might possibly have been helpful but there is no testimony as to why this was or was not done.
The defendant in his brief claims Clintel Betts, the defendant’s uncle, would have testified he saw the shooters running in a different direction than reported by Alfred Burdette. However, there is no support for that statement in the record, and the defendant made no such claim at his hearing on his motion for ineffective assistance. The defendant did claim Clintel would testify Carter told him Celester and Dwayne were asleep when the shots were fired. This might be somewhat helpful except Carter made the same claim to police at first. Further, Sachse explained that Clintel did not want to testify, thus, reducing his effectiveness as a witness.
The defendant argued that Robert Law would have testified that Spencer had been given information by the police about the crime, and that Spencer had shot at the defendant’s house. However, Law’s testimony would have been suspect because he was charged with capital murder at the time of trial. In any event, Sachse did not remember ever being told about Law by either the defendant or his family. The defendant also stated that he wanted to call Detective Golubskie to testify as to what was said to Spencer. However, the import of this testimony would have been negligible where the prosecution did not take the position that the only way Carter could have learned about the crime was through his nephews.
The defendant wanted to call Andrea Burdette to testify that her father was drunk and could not have witnessed all that he testified to. If true, however, this testimony would have seriously compromised Sachse’s trial strategy which sought to push the blame for the crimes onto Celester and Dwayne.
While the defendant stated he wanted Dave Thomas, his employer, to testify as a character witness and possibly to testify as to the defendant’s demeanor the day after the murder, it is difficult to see how this would have added to the defendant’s case.
The defendant claimed his trial counsel failed to communicate with him in a meaningful manner and that counsel would not return his telephone calls, answer his letters, tell him the strategy, or prepare him to testify. However, Sachse testified he visited with the defendant on approximately three occasions and also communicated extensively through the defendant’s family. Sachse also testified that he made the defendant fully aware of the trial strategy.
The defendant also complained of the failure to make an opening statement. However, Sachse explained that in a case where the witnesses might change their testimony, he preferred not to give an opening statement.
The defendant contended that Sachse failed to file motions in limine or discovery motions. However, he fails to specify what motions should have been filed or what a discovery motion would have accomplished in view of the prosecutor’s open file available to Sachse.
The defendant also contends that Sachse elicited incriminating evidence from Carter during his cross-examination at the suppres sion hearing on Carters testimony. During cross-examination, Sachse attacked Carter s credibility by questioning his story that Greg was killed because he broke into the defendant’s apartment. Sachse stated: “Okay. You’re telling us Les told you that the reason Brian killed Greg is because Greg broke into Brian’s apartment, right?” Carter replied: “Brian also said that.” Sachse then stated: “I understand, but that’s the reason you’re telling the Court because he broke into this apartment?” Sachse then went on to attack Carter’s credibility, highhghting the fact that prior to the murder the defendant was of the opinion that Celester was the person who broke into the apartment. The defendant argues that before Sachse elicited the information, there was no testimony connecting him to the crime. This is false in that Carter had already testified that the defendant told him he stood over Greg and finished him off. Any argument that Sachse’s questioning somehow damaged the defendant is specious.
The defendant also complains that Sachse tried to elicit testimony from Carter at the suppression hearing that Celester and Dwayne’s mother thought her sons were involved in the murder. Even if this occurred, it would have been in line with the theory of the defense which was to put the blame on Celester and Dwayne rather than the defendant.
The defendant also argued that his counsel erred in failing to object to his lack of presence when the trial court was communicating to the jury and for failing to object to the substance of the communications. We conclude in this opinion that the defendant’s absence when the trial court communicated with the jury was error. However, we also concluded that the error was harmless. Thus, we are confident that counsel’s failure was not so serious as to deprive the defendant of a fair trial.
Where experienced attorneys may disagree on the best tactics, deliberate decisions made for strategic reasons may not establish ineffective assistance of counsel. Crease v. State, 252 Kan. 326, 338, 845 P.2d 27 (1993). The majority of the defendant’s allegations concern Sachse’s reasonable trial strategy. Others allegations of error concern disputed facts. Viewing the representation as a whole, we conclude die defendant has failed to overcome the pre sumption that his trial counsel’s performance was effective. As a result, the trial court did not err in failing to order a new trial based on ineffective assistance of counsel.
Presence of the Defendant for Jury Question
The defendant next complains that the trial court failed to follow the proper procedure in responding to questions from the jury. He argues: (1) The trial court improperly communicated with the jury outside his presence, (2) the trial court also improperly answered the questions asked by the jury, and (3) the trial court failed to read back testimony requested by the jury.
K.S.A. 2000 Supp. 22-3405, as well as the Sixth Amendment Confrontation Clause and the Fourteenth Amendment Due Process Clause of the United States Constitution, require the defendant’s presence at every critical stage of a trial, including whenever the trial court communicates with the jury. State v. Bell, 266 Kan. 896, 919-20, 975 P.2d 239 (1999). Similarly, K.S.A. 22-3420(3) requires that once a jury has begun deliberations, any questions concerning the law or evidence pertaining to the case must be answered in open court in the defendant’s presence, unless the defendant is voluntarily absent. 266 Kan. at 919.
In the case at hand, the jury asked eight questions of the trial court during deliberations. The record does not reflect the presence of the defendant when five of those questions were answered. The defendant was present for three of the answers. In its decision on the motion for a new trial, the trial court noted the defendant was present for any read-back of testimony but conceded the defendant might not have been present on the other instances such as when the court clarified the jury’s question. Where the record does not affirmatively reflect the presence of the defendant, this court will presume that the defendant’s constitutional right to be present was violated and that K.S.A. 22-3420(3) was not followed. State v. Bell, 266 Kan. at 920. However, as we recognized in Bell, a finding of a constitutional violation does not end the inquiry because a violation of the right to be present is subject to the harmless error rule. 266 Kan. at 920. Thus, the error will be declared harm less if this court concludes that the error had little, if any, likelihood of having changed the result of the trial. 266 Kan. at 920.
In order to determine whether the error was harmless, the substance of the responses must be analyzed. It should be noted that the defendant’s counsel testified that he actually suggested the answers given. Normally, of course, a litigant is not allowed to lead a trial court into error and then complain of the trial court’s action on appeal. State v. Saleem, 267 Kan. 100, 109, 977 P.2d 921 (1999). However, the defendant’s right to counsel is a personal right to be present and it is possible that his wishes might have been different than that of counsel. Further, the substance of the responses was part of the defendant’s claim that his trial counsel was ineffective. As a result, it is incumbent upon this court to review the responses for prejudice.
The defendant asserts that two of the responses caused him prejudice. One of the questions asked by the jury was:
“We would like to hear the testimony regarding whose entrance the hooded individual entered in the rear of file house. Carter s & Brian’s mother.”
After conferring with counsel, the trial court sent the following reply:
“There was no testimony as to whose entrance the hooded individual entered in die rear of the house.”
The jury was obviously concerned as to whether the person seen by Alfred Burdette entered the entrance to the defendant’s apartment. The jury’s question asked for testimony from Carter and the defendant’s mother regarding this subject. The defendant’s mother testified: “[T]he back apartment is where Brian was living. The entrances that lead to the main area of the house, but it’s completely separate living quarters.” Carter testified the defendant’s apartment had a separate entrance on the Greeley side, while there was also a side entrance on the other side of the house. Carter also testified that there was no back entrance per se because both the defendant’s entrance and the side entrance were on the sides of the house.
The jury then asked a followup question to the trial court’s response:
“There were three entrances described on tire house. We need clarification on whose and what doors went to which tenant and where the doors were located. Carter’s Testimony.”
The trial court answered:
“There was testimony presented that tire door on dre front of dre house facing 5dr Street was to tire main portion of dre house. There was no testimony presented as to which portion of dre house each of the doors entered.”
The defendant argued that the trial court’s blanket answer did not reflect the complete nature of the testimony at trial. He contends his mother’s testimony explained the placement and should have been read. However, the defendant’s mother’s testimony did not answer the jury’s question as to whose entrance at the back of the house the individual was alleged to have entered. In fact, the testimony placed the defendant’s residence at the back of the house, which would lead to the inference that it was the defendant’s residence the individual entered.
The defendant argues that the court should have read Alfred Burdette’s testimony regarding the placement of entrances. However, the jury did not ask for this testimony but, instead, asked only for Carter’s testimony.
Finally, the defendant alleges that the trial court should have read Carter’s testimony rather than summarizing it. He argues that under K.S.A. 22-3420(3), the trial court is allowed only to read back or exhibit the evidence, not to summarize it. He alleges that if the testimony had been read, the jury might well have divined the information they were seeking in a manner favorable to him.
K.S.A. 22-3420(3) does not authorize a trial judge to summarize testimony but, rather, only to read it back if available. However, it is difficult to see how that summary affected the substance of the testimony. At best, the summarized testimony was favorable to the defendant. Under the circumstances, the failure to read back the testimony and the failure to have the defendant present during the communication with the jury did not affect the result of the trial.
The defendant also complained of the trial court’s answer to a question which occurred when he was present. The jury sent out the following question:
“Request of Testimony (complete), Mr. Burdette, Mr. Carter Betts, Brians Mother. May we have complete testimony of the above three witnesses?”
The trial court addressed the jury and stated that it could not provide it with a transcript of the testimony but that general areas of the testimony could be provided and read back. The jury conferred and requested the testimony of Burdette explaining his view of the shooting, which was then read back to the juiy. The jury foreman stated the read-back answered the question.
The defendant contends the trial court should have read back the entire testimony of the witnesses. However, we have held that the trial court has the discretion to control the read-back and to clarify the jury’s read-back request if the read-back request is unclear or too broad, or if the read-back would jeopardize the manageability of the trial. State v. Myers, 255 Kan. 3, 8, 872 P.2d 236 (1994). The trial judge did just that in asking the jury to pick out general areas of the testimony to be read back. The jury picked an area, the testimony was read back, and the jury foreman indicated that the read-back answered the question. Under the circumstances, asking the jury to pick out general areas of the testimony to be read back was a reasonable response and was not an abuse of discretion.
Batson Objection
The defendant’s final contention is that the trial court erred in overruling his Batson objection to the prosecutor’s peremptory strikes of black jury members. See Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 St. Ct. 1712 (1986). The defendant objected after the prosecutor used his peremptory strikes to remove seven of the eleven African Americans on the 36 member jury panel and also the only Hispanic juror. The trial court ruled that the defendant had made out a prima facie case of discrimination, thus required the prosecutor to give race-neutral reasons for the strike. The prosecutor gave the following race-neutral reasons:
1. Juror Berry — -Indicated that he knew the Betts family and they have mutual relatives.
2. Juror Officer — Was 15 minutes late coming back from lunch.
3. Juror Slay — Indicated that he had served on a civil jury that was deadlocked and unable to reach a verdict.
4. Juror Gordon — Her boyfriend had previously been charged with murder.
5. Juror Camacho — Youthful in appearance and maturity.
6. Juror Harrington — Knew the Betts family. Also was unemployed.
7. Juror Cowan — Middle aged man who had been working on the job for only 1 year and did not feel he was stable person.
8. Juror Jackson — Very pregnant and dressed inappropriately.
9. Juror McField — Knew all of the Betts family.
After the prosecutor gave his purported race-neutral reasons, the trial court heard argument from the parties on the subject of pretext and ultimately concluded the Batson challenge should be denied.
In Batson, 476 U.S. at 89, the United States Supreme Court held that the Equal Protection Clause forbids the challenging of potential jurors solely on account of race or on the assumption that the jurors of that race as a group will be unable to impartially consider the case. See State v. Walston, 256 Kan. 372, 377, 886 P.2d 349 (1994). In order to challenge the striking of a venireperson under the Batson methodology, the defendant must first make a prima facie showing that the prosecutor has exercised a peremptory challenge on the basis of race. If such a showing is made, the burden then shifts to the State to articulate a race-neutral reason for striking the venireperson in question. The court must then determine whether the defendant has carried the burden of proving purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 358-59, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991); State v. Harris, 259 Kan. 689, 704-05, 915 P.2d 758 (1996).
All agree that the defendant set out a prima facie case and the prosecutor articulated race-neutral reasons for the strikes. The defendant argues the trial court erred in finding the prosecutor’s race-neutral reasons were not a mere pretext for purposeful discrimination. The standard of review to be applied when analyzing a district court’s ruling that the State did or did not act with discrim inatory purpose in exercising its peremptory strike is whether the court abused its discretion. Harris, 259 Kan. at 705; Walston, 256 Kan. at 373-74. Judicial discretion is abused only when exercised in an arbitrary, fanciful, or unreasonable manner, or in other words, when no reasonable person would take the view adopted by the district court. 256 Kan. at 374.
The defendant contended the prosecutor struck Juror Cowan, a black man, because he was middle-aged and had only been working at his job for 1 year, but failed to strike Juror Laughery, a white woman, who exhibited the same characteristics. The record reveals that Juror Cowan was married with three children, aged 28, 27, and 21, and that he was a janitor for the school district and had been on the job approximately 1 year. Juror Laughery, who‘was not struck, was divorced, with two children, aged 31 and 21, and was a customer service representative for Montgomery Wards and had been on the job for 1 year. The State argues in its brief that Laughery cannot be compared with Cowan because Laughery was a more attractive juror for the State in that she had someone close to her who had been murdered. The problem with the State’s argument was that this distinction was not made at the time of the strike.
We have held that the fact the State strikes a minority juror but fails to strike a white juror with similar characteristics is circumstantial evidence of purposeful discrimination. State v. Lee, 263 Kan. 97, 112-13, 948 P.2d 641 (1997). However, while this kind of circumstantial evidence may be sufficient to prove that the State’s race-neutral reason was pretextual, it cannot be considered conclusive evidence in each case as a matter of law. The trial court’s finding ultimately hinges on the court’s evaluation of the prosecutor’s credibility, which is entitled to great deference upon appellate review. 263 Kan. at 113.
This strike is troubling and the trial court made no lengthy analysis of the fact there might have been other white jurors with the same characteristics as the struck juror. On the other hand, the prosecutor in this case did not use his peremptory strikes to remove all African-Americans from the jury panel, ¿though he could have done so. A factor to be considered in determining whether strikes are discriminatory is the presence of other members of the same minority on the jury and the failure of the State to remove such members when given the opportunity. State v. Kingsley, 252 Kan. 761, 779, 851 P.2d 370 (1993). The race-neutral reasons given by the prosecutor for the other strikes are facially reasonable.
The United States Supreme Court noted in Hernandez that on the often dispositive question of whether the State’s strikes were a pretext for discrimination:
“There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies ‘peculiarly within a trial judge’s province.’ ” 500 U.S. at 365.
The trial court in the case at hand concluded the prosecutor’s race-neutral reasons were valid. This is not a conclusion with which no reasonable person would agree and, therefore, under our standard, we conclude that the trial court did not abuse its discretion.
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The opinion of the court was delivered by
Larson, J.:
This is Bryan L. Broyles’ direct appeal of his jury conviction of first-degree felony murder, K.S.A. 21-3401(b), with the underlying felony being abuse of a child, K.S.A. 21-3609, for the death of his 6-month-old son. He was sentenced to fife imprisonment with consideration of parole after 15 years (hard 15). Our jurisdiction is pursuant to K.S.A. 22-3601(b)(l).
Broyles contends his conviction should be reversed based on (1) insufficiency of evidence, (2) prosecutorial misconduct, (3) admission of hearsay reports and conclusions of nontestifying medical experts, (4) exclusion of relevant evidence supporting his theory of defense, (5) admission of speculative and confusing rebuttal evi dence, (6) refusal to strike a biased venireperson for cause, later removed by a peremptory strike, and (7) cumulative error.
Factual and procedural background
While the medical evidence was disputed, and Broyles vigorously contended none of his actions resulted in his son’s death, the remaining facts were not largely in dispute.
On the morning of September 1, 1998, 6-month-old Hagen Broyles appeared to be in his usual healthy state. The only previously noticed injuries were two small bruises on his neck and one on his chest, spotted by his mother, Mandi Brown, after he was picked up from Country Kids Day Care Center several days previously. His mother brought him to Country Kids Day Care Center, which he had been attending for the last week. A day care center worker named Megan Larcum was working there at the time. At 3:45 p.m., Hagen was picked up by his babysitters, Karen Stack and Tonya Rogers. Neither noticed anything unusual about Ha-gen’s behavior. The girls took Hagen to Aleo, where his mother worked, in order to buy diapers. Brown visited with Hagen for a short time while she was working and stated he appeared fine and was laughing. While at Stack’s house, Hagen ate and played. Around 6 p.m., he was picked up by Broyles. He took Hagen to his mother’s home for approximately 45 minutes, then went home to the trailer he and Brown had recently purchased. Only he and Hagen were present at the trailer.
Broyles stated that Hagen appeared fine when he first picked him up but later on became fussy, and that he would fall asleep, then wake up crying. Bryan testified that at approximately 8 p.m., he was changing Hagen’s diaper and noticed Hagen was gasping for air and then stopped breathing. He picked Hagen up and Ha-gen’s eyes rolled back and his body went limp. He called 911 for help and arranged to meet an officer at a major intersection close to his trailer. When the deputy sheriff arrived at the scene, he noticed Broyles sitting with a baby in the truck, and the child’s face appeared blue. After a failed attempt at conversing with Broyles, he took the child from Broyles’ arms and administered rescue breathing until an ambulance arrived.
Hagen was initially taken to Greenwood County Hospital, where he was examined by Dr. Michael McClintick. Dr. McClintick did not notice any large areas of bruising on Hagen; however, Hagen was unresponsive and anemic (low red blood cell count due to blood loss). Hagen was flown to Wesley Medical Center in Wichita, Kansas.
While at Wesley, concerns arose about the nature of Hagen’s injuries. A pediatrician from the Child Protection Team, Dr. Katherine Melhom, was consulted. She interviewed Mandi, spoke to the hospital staff involved, and also examined Hagen. She noted petechial bruising (superficial breaks of blood vessels which cause little red spots) on Hagen’s right forehead and around his right eye. She also noticed a circular brown bruise below the jaw and an irregular purplish bruise on the right ankle. Upon examination of Hagen’s eyes with an ophthalmoscope, she noticed hemorrhaging in both retinas. The same retinal hemorrhages were also seen by Dr. Curtis Pickert, another attending physician at Wesley. Dr. Pickert also noted the soft spot on Hagen’s skull was ridged, evidencing swelling of the brain.
Several other tests were performed and it was discovered that Hagen did have cerebral edema, or swelling of the brain. A large subdural (under the dura mater of the skull, but on top of the brain) hematoma was discovered on the front right side of Hagen’s head. The hematoma appeared to be acute (new blood), estimated at less than 10 days old. The report also stated there was potential evidence of a chronic (old) hematoma. Hagen never regained consciousness from the time he was admitted into the hospital. Tests showed his brain was no longer viable; he was removed from life support and pronounced dead on September 3, 1998.
A subsequent autopsy by Dr. Corrie May revealed Hagen had three fractured but healing ribs, which had been broken at least 7 to 10 days prior. She also found a skull fracture approximately 2 inches in length at the back of Hagen’s skull. When the skull was opened, she spotted and photographed multiple sites of subarachnoidal hemorrhages (bleeding between the brain and the thin cellophane-like layer covering the brain called the arachnoid membrane). She also spotted evidence of a very minute amount of old bleeding, appearing as a yellowish streak, which she stated could have in no way been attributable to the new subdural and subarachnoidal hemorrhages.
Hagen’s brain was also examined by Dr. Michael Handler. He noted that there was a substantial amount of dead neurons (dead brain tissue). He also spotted an old subdural hemorrhage, but noted that it was well past the healing stage, possibly even months old, and could have in no way be attributable to the new bleeding. Dr. Handler did a test for retraction bulbs on the axons which would have been indicative of diffuse axonal injury, generally related to shaking of infants. (The retraction bulbs form as part of a healing attempt by the brain, in an attempt to reconnect neurons that have been tom apart.) The test results were negative, but he explained that was probably due to the quick onset of lack of oxygen to the brain or that so many neurons were torn that brain death was immediate. He stated that the bulbs take 18 to 72 hours to form, and once the tissues die the reparative process stops.
At Broyles’ trial, Dr. Melhom opined that Hagen died of abusive head trauma. Dr. May concluded that the cause of death was shaken impact syndrome. Dr. Handler testified the brain injuries were not consistent with a fall, but rather with shaken baby syndrome, where the child was shaken, then thrown. Dr. Pickert stated that Hagen’s condition did not fit his reported history and that child abuse may have been the cause of his injuries. Dr. May opined that the injuries to Hagen’s ribs, due to their posterior location and the age of the infant, indicated inflicted, not accidental, trauma. Drs. Handler, May, and Melhom each agreed that there was no possibility Hagen could have appeared normal after he received the head injury.
In his defense, Broyles called Dr. Michael Amall, who had reviewed the reports and records surrounding Hagen and his medical treatment. Dr. Amall concluded the subdural hematoma resulted from spontaneous rebleeding, resultant of no trauma or a trivial amount of trauma. He based this conclusion on lack of a finding of any evidence of new trauma, in that there were no retraction bulbs discovered and no evidence of new rib fractures. He found the skull injury to be “quizzical” and opined that the skull fracture might be an old fracture that was pulled apart (rebroken) by the swelling of the brain. Considering the possibility that Hagen did in fact die from being shaken, Dr. Amall stated the onset of symptoms from a blunt force trauma or shaking could be over several days, weeks, or even years. He noted that symptoms might include cursory fits, change of eating habits or lack of appetite, fussy behavior, or too much or too little sleep, but he added that some children may not display any symptoms.
The jury found Bryan Broyles guilty of felony murder. His motion for a new trial was denied. He was sentenced as earlier stated and now appeals.
Insufficient evidence
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000).
Broyles’ challenge is directed to conflicting medical expert testimony. While he does admit that several medical conditions of Hagen were proven at trial, he notes that although Dr. Amall’s opinion was based on the same general facts, he reached a different opinion than the State’s medical experts. He contends this conflict shows insufficiency of the evidence. When reviewing sufficiency of the evidence in a case such as this, we said in State v. Saiz, 269 Kan. 657, 664, 7 P.3d 1214 (2000), that “[i]t is not the function of an appellate court to reweigh the evidence or pass on the credibility of witnesses. [Citation omitted.] A conviction of even the greatest offense may be sustained by circumstantial evidence. [Citation omitted.]” This has been our longstanding rule.
The State’s medical experts noted Hagen had three broken but healing ribs, a fracture in the back of his skull, hemorrhaging around the fracture, and retinal hemorrhaging in both eyes. They concluded Hagen died of shaken impact syndrome, specifically including a blunt trauma to the head, and that the onset of symptoms would have been immediate after the act of abuse occurred.
While the opinions of the defense expert raised the possibility that Hagen may have appeared lucid for some time after the injuries, creating a question as to whether the injuries occurred while he was within Broyles’ sole control, there was evidence that the rib fractures were indicative of past abusive treatment. The State’s experts testified that the onset of symptoms of the brain injuries would have been immediate, caused by severe brain swelling and bleeding. The jury had the right to reject Dr. Amall’s conclusions, as the verdict shows it did.
We do not find State v. Matlock, 233 Kan. 1, 660 P.2d 945 (1983), or State v. Naramore, 25 Kan. App. 2d 302, 965 P.2d 211, rev. denied 266 Kan. 1114 (1998), to be controlling. Both cases are completely different factually and do not compel a result different from that the jury reached.
Examining the evidence in the manner in which we are required to do clearly shows that there was sufficient evidence to support the conviction.
Prosecutorial misconduct
Broyles next contends that comments made by the prosecutor during closing argument were misconduct and prejudiced his right to a fair trial. Our standard of review for prosecutorial misconduct was stated in State v. Pabst, 268 Kan. 501, 504-05, 996 P.2d 321 (2000), as follows:
“Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant’s constitutional right to a fair trial. See State v. Sperry, 267 Kan. 287, 308, 978 P.2d 933 (1999). Some complained-of prosecutorial statements were not objected to at trial. If the claimed error has been determined to implicate a defendant’s right to a fair trial, our standard of review is the same whether or not an objection was made at trial. If the claimed error rises to the level of a denial of the Fourteenth Amendment right to due process, die issue will be addressed. State. v. McCorkendale, 267 Kan. 263, Syl. ¶ 6, 979 P.2d 1239 (1999).”
This standard was summarized in State v. Deiterman, 271 Kan. 975, 987, 29 P.3d 411 (2001) (quoting State v. Campbell, 268 Kan. 529, 539, 997 P.2d 726 [2000]), in this manner:
“The analysis of the effect of a prosecutor’s alleged improper remarks in closing argument is a two-step process. First, we decide whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. In criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as the argument is consistent with the evidence. Second, we must decide whether die remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice die jury against the accused and deny a fair trial, requiring reversal.” [Citation omitted.]’ ”
Broyles cites to three separate instances of misconduct during closing and then makes a cumulative argument that while the three separate incidents by themselves may not have denied him a fair trial, taken together they did.
Shifting the burden of proof
Broyles first argues the prosecutor improperly shifted the burden of proof when she commented on his failure to call several family members who had extensive knowledge of Broyles’ relationship with Hagen.
During closing arguments, the prosecutor stated:
“But more importantly who did we not hear from? We didn’t hear from the people that he actually lived widi during that time, did we? We heard from Mandi Brown. But we didn’t hear from the Robinsons. We didn’t hear from Mandi’s sister, who Bryan indicated they had lived with for the six months of his life.”
At this point, defense counsel objected and the following colloquy occurred:
“[DEFENSE COUNSEL]: When I was presenting this evidence, the State objected and the Court indicated it would cut me off. These witnesses were present in the courthouse. The State can’t now come in and say he didn’t call them to testify. We would have called them to testify. The State is the one that kept us from being able to present that evidence.
“THE COURT: Were you going to call these people?
“[DEFENSE COUNSEL]: Very likely.
“THE COURT: Very well.
“[DEFENSE COUNSEL]: Judge, you informed me — we had this discussion and the Court indicated to me that you were going to cut me off after a witness. I told the judge I did have other witnesses here.
“THE COURT: Okay. Well, let’s move on then to another subject. I agree.”
An examination of the entire record clearly shows that defense counsel’s argument during closing and on appeal is not supported by the facts.
The trial court allowed the defense to present testimony from 10 separate witnesses who related their observations of the interaction between Broyles and Hagen. One witness’ testimony was presented through a deposition transcript and the defense also introduced a video clip of Broyles’ and Hagen’s interaction.
During testimony of the seventh witness, Russell Hewitt, the prosecutor objected, complaining that Hewitt had only seen Bryan and Hagen Broyles together on one instance. When asked the grounds for her objection, she stated, “Specific instance of conduct.” The prosecutor further clarified her contention: “Definitely that . . . would not go to relationship, just a one — one time instance.” When asked by the court, “How many more of these do you have like this?” defense counsel responded, “[J]ust be one or two more.”
The court initially ruled that it would allow counsel to call its remaining witnesses, even if the witnesses’ exposure to Broyles’ relationship with Hagen was slight. However, upon further arguments by defense counsel, the court altered its ruling: “[Wjell, I will let this one go, but I don’t think I want another just one time shot. ... I think they need be a longer span there.”
The trial court allowed the defense to finish Hewitt’s testimony and allowed two more witnesses to testify about Broyles’ relationship with Hagen. During the testimony of Cathy Stapleford, an issue arose concerning introduction of a video clip of Broyles interacting with his son. The discussion related to whether Broyles was in fact introducing his character into evidence through evidence of specific conduct. The court made comments relating to K.S.A. 60-446 and K.S.A. 60-447, with the defense continuing to assert that the evidence being offered was not character evidence but only evidence regarding the nature of their relationship. The State also argued that the evidence had become repetitive, and defendant contended this was not so because each witness had testified to different instances. After the court held it would allow the video clip to be received in evidence, defense counsel stated, without any prompting from the court: “I would inform the Court this will be the last witness in this type of evidence in this series of witnesses. We will move on to a different area.”
Broyles’ claim that he was prevented by order of the court or objection of opposing counsel from calling relatives on his behalf who would have had extensive knowledge of his relationship with Hagen is unfounded. The record shows that he was allowed to call all the witnesses which he wished to present. The difference between placing his character in issue and establishing a relationship with the victim did become somewhat blurred in this case, but the trial court was generous in allowing testimony that could well have been deemed repetitive, and clearly allowed Broyles to present every desired witness on the relationship issue.
We have held that it is not reversible error for either party to comment during closing argument on the failure of the other party to produce witness testimony that would presumably bolster that party’s theory, so long as the witnesses were available to the party and the argument would not infringe on the defendant’s right to remain silent. See State v. Verge, 272 Kan. 501, 34 P.3d 449 (2001); State v. Baker, 249 Kan. 431, 446, 819 P.2d 1173 (1991); and State v. Wilkins, 215 Kan. 145, 150-51, 523 P.2d 728 (1974). We have held it was not erroneous for a prosecutor to rhetorically ask the jury why a witness would not have been called whose testimony would have been exculpatory. Broyles theorized in his case and during closing argument that he had an excellent relationship with Hagen, and the prosecutor’s comment on his failure to call relatives who had more intimate knowledge of and exposure to that relationship is not prosecutorial misconduct.
Vouching for the credibility of the expert witnesses
In discussing the expert witnesses, the prosecutor stated:
“You have to decide if those four witnesses [the State’s experts] are more credible than Dr. Arnall [the defense expert], . . . What motives do the [State’s doctors] have to come in and say anything other than that they believe what the cause was? They have no motive to come in and tell you something that’s untruthful. Let’s look at Dr. Arnall. [He never saw Hagen or conferred with the other experts about the case.]
“His testimony is based only on what he found in their records and reports. . . . Now, what possible reason would he have [for] coming? Well, you heard him say he is being paid a thousand dollars a day to come and testify in this case.”
Broyles notes that there was nothing in evidence as to what the State’s experts were paid, and he claims that this comment regarding the charge for his witness was improper and that credibility may not be raised in this manner.
This is not a question that was objected to during closing argument and so the prosecutorial misconduct issue falls under the contemporaneous objection rule. State v. Campbell, 268 Kan. 529, 541, 997 P.2d 726, cert. denied 531 U.S. 832 (2000). However, this is a part of Broyles’ overall claim of lack of a fair trial. While we do not endorse attempts to link expert opinions to their cost, we would not preclude such an assertion where found to be material. There was full right of cross-examination as to compensation received or the interest in the case, and we do not hold the unobjected-to comment to be prosecutorial misconduct.
Reference to defendant as a “consistent liar”
Broyles argues that the prosecutor committed prejudicial misconduct by commenting during closing argument that he was a “consistent liar.” The State admits that it did make an improper comment, but contends that the error should not require reversal. During Broyles’ closing argument, his counsel stated the following:
“The third thing that’s troubling to me is that Bryan’s account of what happened has never varied. It’s always been consistent. It’s just easier to tell the truth than to lie then you got to remember what the lie is. But Bryan’s account has always been consistent. . . .
“So what did happen on the evening of September first of 1998? You heard the testimony, you saw and heard Byran Broyles testify. Did it appear that Biyan was acting? Is Biyan Broyles just a good liar? Your watched when he testified, what happened? You saw his demeanor, you observed his mannerisms. Did it appear to you he was lying or that he was being truthful?”
Apparently in response to this line of argument, the prosecutor replied in rebuttal:
“The defendant has told the same story throughout the whole time. Well, again I have to disagree with that. You heard the statements that he made, things that he said, and you heard what he said on the stand today. They talk about where— where the things were in the room right where Bryan said they were. When he testified today he knew where he sat. He watched that video tape. I want you to think of all the statements you heard about what defendant said. And even something within your more common sense, he is a consistent liar. What does he have to make up here? He doesn’t have to make anything up. He just left one little small thing out. How difficult is it to say the thing over and over again if you are just leaving out one small 30 second portion of what happened.” (Emphasis added.)
Again, there was no objection, and this must be considered in light of whether Broyles’ due process rights were so violated that a new trial must be granted. See State v. Lumley, 266 Kan. 939, 965, 976 P.2d 486 (1999).
Broyles relies solely on State v. Pabst, 268 Kan. 501, 996 P.2d 321 (2000). Pabst was a case where there were numerous continued and pointed references to the defendant as a liar, which found in that case to be prejudicial error. However, in this case the record shows only the single statement which appears to be in direct response to the defense’s comment. Broyles’ suggestion that ill will should be inferred is not supported in the record. In State v. Lockhart, 24 Kan. App. 2d 488, 490, 947 P.2d 461 (1997), ill will was found but the prosecutor there disregarded a prior sustained objection and continued to refer to defendant and counsel as liars. Such facts are not before this court.
The context in which the prosecutor’s statement was made must be considered. The statement was made not during an attack upon Broyles’ credibility, but rather in tying together strong expert testimony as opposed to Broyles’ statements at trial. It appears to be the prosecutor’s misguided attempt to find an alternative theory to the defense’s argument that consistency equates with truth. The statement was clearly improper, but does not rise to the level of being gross or flagrant, nor did it compromise Broyles’ right to a fair trial.
We have considered all the arguments as they relate to the prosecutor’s entire closing argument and find the cumulative effect was not sufficient to reverse and require a new trial.
Admission of hearsay reports and conclusions of nontestifying medical experts
Broyles argues that the State’s medical experts were improperly allowed to rely upon tests and conclusions of other nontestifying experts. He argues this is error equated to improper admission of hearsay evidence and was a violation of his Sixth Amendment right to confrontation. Specifically, he complains of testimony concerning the results of clotting studies, x-rays, a bone scan, and a CT scan, with accompanying diagnostic reports and the report of Dr. M. Rupani.
We have held: “ The admissibility of expert testimony lies within the sound discretion of the trial court and its determination will not be reversed on appeal absent a showing of abuse of discretion.’ State v. Stuckey, 242 Kan. 204, Syl. ¶ 1, 747 P.2d 137 (1987).” State v. Humphrey, 252 Kan. 6, 14, 845 P.2d 592 (1992).
Also involved in these contentions are K.S.A. 60-456(b) and (c):
“(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.
“(c) Unless the judge excludes the testimony he or she shall be deemed to have made the finding requisite to its admission.”
and the provision of K.S.A. 60-460, which states:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence, and inadmissible except:
“(m) Business entries and the like. Writings offered as memoranda or records of acts, conditions or events to prove the facts stated therein, if the judge finds that (1) they were made in the regular course of a business at or about the time of die act, condition or event recorded and (2) the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness.”
(1) Clotting studies
The clotting studies, including a platelet count, a prothrombrin time (PT) test, and a partial prothrombrin time (PTT) test, are referred to twice in the record, both as part of Dr. Katherine Mel-horn’s testimony. Dr. Melhom’s report on the death of Hagen Broyles concluded that he died of abusive head trauma immediately prior to the onset of symptoms. In the report she cites to blood clotting tests and various results and states that they were normal. However, at trial, apparently misquoting this report, she testified that the clotting tests were abnormal. Neither the State nor defense attempted to correct this inconsistency. She stated at trial the purpose of the tests was to see if there might be an alternative cause of the bleeding in Hagen’s head.
Defense counsel objected to the reference to the results of the clotting tests stating: “I’m going to object at this time, unless whoever did the lab test procedure is going to be called to testify.” When informed that the tests were performed at the Wesley Medical Center where Dr. Melhom practiced, the trial court admitted the report under the business records exception of K.S.A. 60-460(m).
We said in In re Estate of Bernatzki, 204 Kan. 131, 134-36, 460 P.2d 527 (1969), that hospital medical records are admissible in evidence as business records under the K.S.A. 60-460(m) exception. It is argued by the State that all of the evidence in question was in the form of medical records and was thus admissible.
The defendant argues that the medical report’s admission was improper and to do so allows a party to bootleg into evidence a hearsay conclusion under the pretense that it is either a record or part of the basis of the party’s conclusion. Somewhat supportive of the defendant’s position is State v. Carson, 216 Kan. 711, 713, 533 P.2d 1342 (1975), where we held that a written report of a blood test result which placed the defendant at the scene of an attempted burglary was not admissible under a hearsay exception.
In this case there is nothing in the record establishing that the clotting studies were anything other than a machine test which could be performed by a nonexpert and were a part of the Wesley records. Broyles failed to object to the foundation of the record and only complained that it should not be admitted unless the precise individual who performed the tests was called. We hold the report was properly referred to and admitted under the facts of this case.
(2) X-Rays, Bone Scan, CT Scan, and Accompanying Diagnostic Reports, and Eye Examination
Although Broyles objected to these items coming into evidence or being referenced, all were properly brought into evidence by means that avoided the rule against hearsay evidence. In effect, these facts were “made known” by direct observation of the experts at the trial, regardless of what their reports were based on prior to trial. See State v. Marks, 231 Kan. 645, 655, 647 P.2d 1292 (1982); Klein v. Wells, 194 Kan. 528, 539, 400 P.2d 1002 (1965).
The retinal hemorrhages were noted by Dr. Melhorn in her personal examination of Hagen’s eyes. Dr. May personally observed the skull fracture during the autopsy and also found a large subdural hematoma as well as a small old hematoma. Dr. May also noted in her report the discovery of three old and healing rib fractures on the posterior aspect of the left ribs. All intracranial hematomas were thoroughly documented by Dr. Handler’s neurological autopsy. These constitute all of the relevant information produced by the complained-of reports upon which the State’s experts relied in reaching their respective conclusions. As these facts were in evidence, they were properly relied on by the State’s experts under K.S.A. 60-456(b)(l) and (2).
(3) Report of Dr. M. Rupani
This was a separate report referenced in Dr. May’s autopsy report. It was apparently made by an outside consultant Dr. Rupani, who was not a part of the hospital staff, and allegedly was improperly referred to. It does relate to the retinal hemorrhaging in Ha-gen’s eyes, but Dr. Melhorn testified that she had observed this hemorrhaging herself at the time of her evaluation. This evidence appears to fall under the provisions of K.S.A. 60-456(b) and (c) and was necessary to aid the jury in making its determination. We find that admission of this evidence was not reversible error and had little if any effect upon the determination of the case.
The trial court did not abuse its discretion or violate the defendant’s confrontational rights by admitting the objected-to reports and testimony.
Exclusion of relevant evidence supporting defendant’s theory of defense
Broyles next argues the trial court abused its discretion by excluding the testimony of two mothers who would have testified their young children stated, while in an excited state, that they were improperly treated at the day care center. He also contends the trial court erroneously excluded testimony about his exemplary relationship with his son.
The question of whether the trial court erred in admission of evidence is subject to an abuse of discretion standard of review. State v. Mixon, 27 Kan. App. 2d 49, 53, 998 P.2d 519, rev. denied 269 Kan. 938 (2000). Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999).
Broyles contends courts have long recognized the right of a criminal defendant to present his or her theory of defense. See Chambers v. Mississippi, 410 U.S. 284, 294, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973); State v. Bradley, 223 Kan. 710, 714, 576 P.2d 647 (1978).
We first turn to his claim that the trial court erred in refusing to allow testimony of treatment at the day care center.
The morning prior to trial, the State’s motion in limine was heard to determine the competency of two 4-year-old children and one 8-year-old child, as well as the relevancy of their respective testimonies. It was proffered the children had been earlier mistreated at the same day care center which cared for Hagen on the day he was hospitalized. The 8-year-old competently testified that a day care employee (who was on duty on September 1,1998) shook and slapped the infants and treated other children in a physically violent manner.
Neither of the two 4-year-old boys were able to show sufficient competency to testify. One was unable to tell truth from lies and the other was agreeable with whatever was said. The court further noted that the events about which the boys were being asked had occurred when the boys were “a couple years younger” (actually, about 20 months earlier), and this fact would have made them between 2 and 3 years old at the time. The defense then requested that the mothers be permitted to testify on behalf of the 4-year-olds under either the excited utterance exception, K.S.A. 60-460(d)(2), or the unavailable witness exception, 60-460(d)(3).
The trial court denied the request, finding that the alleged statements were not trustworthy and that even under these exceptions “the court has got to find that the declarant understands the truth — the difference between a truth and a lie and is capable of articulating some particular events.”
The court found that the 8-year-old was competent, and as to her testimony ruled: “I’m just going to let the jury listen and decide for themselves.” For some unknown reason the 8-year-old was not called as a witness by the defense during trial.
The two exceptions to the hearsay rule relied upon by Broyles are K.S.A. 60-460(d)(2) and (3), which are often referred to as the “excited utterance exception” and the “unavailable declarant exception.” Those exceptions read:
“(d) Contemporaneous statements and statements admissible on ground of necessity generally. A statement which the judge finds was made ... (2) while the declarant was under the stress of a nervous excitement caused by such perception, or (3) if the declarant is unavailable as a witness, by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant’s recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.”
The parties’ arguments are predictable. Broyles cites State v. Myatt, 237 Kan. 17, 22-23, 697 P.2d 836 (1985), and State v. Rodriguez-Garcia, 27 Kan. App. 2d 439, Syl. ¶ 5, 8 P.3d 3 (1999), rev. denied 269 Kan. 939 (2000), where such testimony was allowed. The State relies on cases such as State v. Rowe, 252 Kan. 243, 248, 843 P.2d 214 (1992), where similar testimony was not allowed and which held that “[wjhether a statement measures up to the requirement of spontaneity is largely a matter for the discretion of the trial court.” Rowe, 252 Kan. at 249. The State also argued (d)(3) is not a “firmly rooted hearsay exception” and so evidence admitted pursuant to it must be excluded absent a particularized guarantee of trustworthiness, and the trial court is necessarily given considerable discretion in admitting statements under these exceptions. See State v. Hobson, 234 Kan. 133, 158, 671 P.2d 1365 (1983).
A concise discussion of these hearsay exceptions is found in Barbara, Kansas Rules of Evidence with Evidence Objections and Evidentiary Foundations § 7.6 (3d ed. 1993):
“Comment: This exception to the hearsay rule dealt with declarations made before, during or after the happenings of the principal occurrence. Where the dec larations were so clearly connected with the principal occurrence they in reality formed a part of the occurrence. This section replaced the res gestae exception with die contemporaneous statement exception of admissibility to hearsay. Clause
(1)requires that the statement be strictly contemporaneous with the act described, and clause (2) that it be made while the declarant was under the ‘stress of nervous excitement’ caused by the act. [Citations omitted.]
“State v. Rowe, 252 Kan. 243, 843 P.2d 714 (1992), details most extensively die ■ application of K.S.A. 60-460(d)(l), (2) and (3). Citing Judge Gard the court explains the difference between (d)(1) and (d)((2) .... ‘Clauses (1) and (2) of this section . . . . describe conventional res gestae, admissible hearsay with the characteristic of spontaneity arising either from die reaction to contemporary perception or from the excitement which carries over from the event. . . . Whether a statement measures up to the requirement of spontaneity is largely a matter for die discretion of the trial court. ...’ 1 Gard’s Kansas C. Cir. Proc. 2d Annot. §60-460(d), p.239 (1979).”
“In Rowe, the court cited Barbara on Kansas Evidence Objections with Evidentiary Foundations, that the state failed to show that an ‘event or condition occurred’ as required to establish proper foundation of K.S.A. 60-460(d)(l), and under K.S.A. 60-460 (1)(2), the state failed to prove the declarant made the statement ‘startlingly sufficient to cause nervous excitement’ (pp. 249-50).
“Under clause (3) above, before any hearsay statements are admissible, the trial judge must find:
(1) the declarant is unavailable as a witness,
(2) the matter described was recently perceived by the declarant and made while memory was fresh, and
(3) the statement was made under circumstances so as to show that is was in good faith, before there was any action pending, and with no incentive to falsify or distort.
“The court is given considerable discretion in admitting statements under this exception. The presence or absence of an incentive to falsify or distort is a question of fact for the trial judge to determine in light of all the circumstances. State v. Hobson, 234 Kan. 133, 158, 671 P.2d 1365, 1386 (1983) (no error in court’s refusal to admit statement not reliable). State v. Garner, 237 Kan. 227, 242, 699 P.2d 468, 479 (1985) ( no error in court’s discretion in admitting testimony). State v. Rodriguez, 8 Kan. App. 2d 353, 657 P.2d 79 (1983) (child victim’s statement); State v. White, 234 Kan. 340, 673 P.2d 1106 (1983), State v. Rowe, supra.
“Whether a statement falls within the spontaneity rule is a matter of judge’s discretion. State v. Lomax, 175 Kan. 368, 264 P.2d 908 (1953). In State v. Berry, 223 Kan. 566, 575 P.2d 543 (1978), á hearsay statement of robbery victim, though not contemporaneous with the event described, was admitted where the statement concerned events recently perceived. Testimony of a driver whose car was passed by tire defendant’s truck immediately before collision with plaintiff s car that T just figured the way he was driving, he was looking for an accident’ did not come within the hearsay rule as to mental condition. McGlothlin v. Wiles, 207 Kan. 718, 487 P.2d 533 (1971). But see Hastings v. Ross, 211 Kan. 732, 508 P.2d 514 (1973) where the declarant stated ‘that boy is going to kill somebody one of these days’ as she saw the speeding car.”
See 4 Jones on Evidence § 28:1-26 (7th ed. 2000).
It is not helpful to attempt to analyze the existence or absence of the specific requirements of (d)(2) or (d)(3), as the trial court’s refusal was centered on its finding of the complete unreliability of the stories of two children between ages 2 and 3, which were to be recounted some 20 months later when their ages were between 4 and 5 years old. The unreliability finding clearly justifies the denial of the mothers’ testimony. This is proper under our holding in State v. Hobson, 234 Kan. at 159, where we affirmed a ruling based on the lack of reliability of the supposed declarant and lack of ability to cross-examine the declarant as well.
We do not find the trial court abused its discretion in refusing to allow the mothers’ testimony.
It should be pointed out again that the 8-year-old girl appeared to be a very competent witness, and the trial court ruled that her testimony as to the events at the day care center in the summer prior to Hagen’s death could be offered to the jury. Also, the day care worker who was the subject of the accusation, was not cross-examined on her treatment of the children, which would have been another way to bring this defense before the jury. The trial court did not err and did not prevent Broyles from raising and adequately presenting his theory of defense.
Broyles also argues he was prevented from showing that his relationship with Hagen was such that he could never have abused him. As we have previously stated in the discussion of the claimed error of prosecutorial misconduct, Broyles presented testimony of 10 different witnesses who each spoke of the relationship between Broyles and his son in positive terms.
There was opportunity for more detailed testimony to have been presented, although at some point it may have been proper for an objection to be sustained on the evidence as cumulative. The selection of the witnesses was Broyles’ decision, and the trial court allowed him great leeway in presenting his defense. This contention does not show reversible error.
Admission of speculative and confusing rebuttal evidence
Broyles contends that the trial court erred in allowing the State to produce as a rebuttal witness one of the attending nurses at Greenwood County Hospital. He complains that her testimony was irrelevant and prejudicial.
As its sole rebuttal witness, the State called Anita Mills, a registered nurse who was present when Hagen was initially brought to the hospital by ambulance. Immediately after Hagen was taken in, she testified that she observed Broyles leaning against a brick wall. She heard him say that “he wished he could get out of there— maybe not the exact words — while he could get going.”
Broyles’ challenge of this statement reflects a misunderstanding of this court’s standard of review of the admission by the trial court of rebuttal evidence. In State v. Willis, 240 Kan. 580, 583, 731 P.2d 287 (1987), we stated:
“Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts witnesses on die opposite side, but also corroborates previous testimony. The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears its discretion has been abused. [Citations omitted.]”
While Broyles points out that there were several nonincriminating explanations for his statement, such is not sufficient for this court to find the trial court abused its discretion. Where reasonable minds can differ, discretion has not been abused. State v. Williams, 268 Kan. 1, 8, 988 P.2d 722 (1999). It is not unreasonable to believe that Broyles’ statement may veiy well have reflected an uncaring mind set. This would certainly be in contravention of evidence he earlier introduced tending to show his great love and affection toward his son. The trial court did not abuse its discretion in admitting this statement.
Refusal to strike a biased venireperson for cause
Broyles claim that he was deprived of due process because he had to use a peremptory strike to remove a potential juror whom the trial court should have excused for cause is an issue that has been discussed in numerous recent cases and held to be without merit. See, e.g., State v. Donesay, 270 Kan. 720, 725-26, 19 P.3d 779 (2001); State v. Manning, 270 Kan. 674, 690-95, 19 P.3d 84 (2001).
In these cases, the defendants contended they were denied due process by being forced to use peremptory challenges to strike what were claimed to be unqualified jurors. When challenges were used to strike these questionable venirepersons, we found no reversible error. We need not restate our previous holdings on this issue.
Cumulative errors
Defendant argues that he was prejudiced by cumulative trial errors. When reviewing cumulative errors, this court has held:
“ ‘Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial.’ ” State v. Bedford, 269 Kan. 315, 332-33, 7 P.3d 224 (2000) (quoting State v. Lumbrera, 252 Kan. 54, Syl. ¶ 1, 845 P.2d 609 [1992]).
The only potential error we have found was prosecutorial misconduct, and the effect of that error has been found to be harmless. Therefore, we need not make a cumulative error analysis.
This, like many criminal trials, was a difficult one, but as we have often said, an accused is entitled to a fair trial, not a perfect one. State v. Chandler, 252 Kan. 797, Syl. ¶ 3, 850 P.2d 803 (1993). We find no valid reason, based on our standards of review, to grant a new trial.
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|
The opinion of the court was delivered by
Davis, J.:
Clayton E. Saathoff appeals the district court’s finding that he is a sexually violent predator in spite of his admission to the trial court by stipulation that he is a sexually violent predator under the provisions of K.S.A. 59-29a01 et. seq. Based upon his admission and acquiescence in the judgment he appeals, we have no jurisdiction and dismiss his appeal.
On January 27,2000, the State filed a petition in Johnson County District Court pursuant to the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., alleging the respondent was a sexually violent predator. A probable cause hearing was held pursuant to K.S.A. 59-29a05, and the district court determined there was probable cause to believe the respondent was a sexually violent predator and ordered the respondent to be evaluated at Lamed State Security Hospital (Lamed). The evaluation from Lamed indicated the respondent was not a sexually violent predator.
Following the negative evaluation at Lamed, the State hired its own expert to review the case and to evaluate the respondent. The State’s expert found the respondent fit the criteria of the statute but wanted to interview the respondent. The respondent filed a motion for an injunction, asking the trial court to prevent the State from requiring the respondent to submit to an evaluation by the State’s expert. The respondent also filed a motion for summary judgment that as a matter of law he was not a sexually violent predator based upon the Lamed evaluation. The respondent argued the Larned evaluation was the only competent evidence the trial court should consider.
In a journal entry dated May 3, 2000, and filed July 27, 2000, the court denied the respondent’s motion for injunction, motion for summary judgment, and motion for release on house arrest. In an attempt to appeal the issue of whether the State may require the respondent to submit to an evaluation by an additional State expert after the initial Larned evaluation resulted in a negative determination, the respondent entered into a consent decree and stipulation that he “is a sexually violent predator as set out in K. S .A. 59-29a01 et seq.”
On June 30, 2000, the respondent filed a notice of appeal regarding the trial court’s entry of summary judgment of May 3, 2000. The Court of Appeals issued a show cause order asking the parties to respond to the questions of whether the case was final and whether the respondent had acquiesced in the judgment, making the appeal moot. The State responded, stating the order was final and the appeal was not moot. The respondent, likely anticipating the disadvantages of having signed the consent decree, agreed the appeal should be dismissed and the case returned to the trial court. The Court of Appeals retained jurisdiction. The case was then transferred to this court pursuant to K.S.A. 20-3018(c).
The respondent’s consent and stipulation that he is a sexually violent predator amounts to his acquiescence in the judgment entered. We conclude that this appeal should be dismissed based upon the rule that a party is bound by a judgment entered on stipulation or consent and may not appeal from a judgment in which he or she has acquiesced. In re Sandstrom, 224 Kan. 293, 298, 580 P.2d 1310 (1978).
In its response to the Court of Appeals’ show cause order, the respondent argued that he fit within an exception to the general rule in Sandstrom that a party may not appeal from a judgment in which he or she has acquiesced. The exception relates to questions regarding the subject matter jurisdiction, which according to In re Miller, 228 Kan. 606, 608, 620 P.2d 800 (1980), is reviewable on appeal. However, the respondent did not question the jurisdiction of the trial court. His position was that the trial court did have jurisdiction and should have found for him as a matter of law because the State had no evidence that he was a sexually violent predator. Thus, the respondent’s attempted appeal fails based upon his stipulation and the consent decree that he “is a sexually violent predator as set out in K.S.A. 59-29a01 et seq.”
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|
The opinion of fhe court was delivered by
Six, J.:
This first impression case arises from the defendant Bank of America’s (Bank) refusal to comply with subpoenas seeking customer records issued by David R. Brant, Securities Commissioner of Kansas (Commissioner). Each subpoena specifically ordered the Bank not to notify the customer of the subpoena. The Bank refused to honor the subpoenas and to comply with the confidentiality requirement. The Commissioner filed an application under K.S.A. 17-I265(d) (refusal to obey a subpoena) and K.S.A. 50-1009(b) (application for court order) for an order to enforce the subpoenas and to prohibit the Bank from notifying its customers.
The district court held that: (1) the Bank’s customers have no reasonable expectation of privacy in their bank records and (2) the Commissioner, under his statutory power to conduct private investigations, had the authority to prohibit the Bank from notifying its customers of the subpoenas. The district court granted the Commissioner’s application and restrained the Bank from notifying its customers of the subpoenas. The Bank now appeals.
Our jurisdiction is under K.S.A. 20-3018(c) (a transfer from the Court of Appeals on our own motion).
The issues are whether the district court erred in ruling that: (1) the Commissioner has the authority under K.S.A. 17-1265(a)(l) to issue a subpoena that prohibits the Bank from informing its customers of the subpoena, and (2) the Bank’s customers have no reasonable expectation of privacy in their bank records and, thus, were not entitled to receive notice that their bank records were subpoenaed.
The Bank also contends that the district court’s application of K.S.A. 17-1265(a)(l) is unconstitutional because the Commissioner’s conduct imposed a prior restraint on speech (an alleged violation of the Bank’s rights under the First Amendment and § 11 of the Kansas Constitution Bill of Rights). We do not reach the contention. The prior restraint argument was not presented to the district court. Generally, where constitutional grounds for reversal are asserted for the first time on appeal, they are not properly before us for review. Ruddick v. Boeing Co., 263 Kan. 494, 498, 949 P.2d 1132 (1997).
Finding no error, we affirm.
FACTS
The Commissioner issued and served on the Bank subpoenas duces tecum for records of three different bank accounts. The first subpoena requested originals or authenticated copies of specified checks and wire transfers, and copies of the account application and signature card for the purchasers or issuers of the specified transactions. Each subpoena included the following confidentiality clause:
“This subpoena is issued in connection with a law enforcement investigation. Therefore, tire existence of this subpoena and any testimony or documents produced pursuant to it are to remain confidential and shall not be disclosed to any third party, including the account holder or customer who is die subject of die subpoena, unless prior written approval is obtained from the Kansas Securities Commissioner or the issuer of diis subpoena.”
The second subpoena requested copies of the signature card and all monthly statements from May 1998 through August 1999 for that account. The third subpoena, issued under K.S.A. 50-1009(a)(13) of tire Kansas Loan Broker’s Act, requested originals and authenticated copies of a specified check.
The Bank has a privacy policy that it provides to its customers and publishes on its internet web site. The policy says, in part:
“If we receive a subpoena or similar legal process demanding release of any information about you, we will generally attempt to notify you (unless we believe we are prohibited from doing so). Except as required by law or as described above, we do not share information with other parties, including government agencies.” (Emphasis added.)
There was no evidence presented to the district court suggesting that the customers whose accounts were the subject of the three subpoenas ever saw the text or relied upon it when opening an account with the Bank.
The Bank explained its privacy policy regarding subpoenas in a letter to the Commissioner:
“We recognize that state law does not mandate that a financial institution notify its customers when served with a subpoena seeking the customer s bank records. However, we are not aware of any prohibition under state law against notifying the customer. If you are aware of court cases, attorney general opinions, or other authority specifically prohibiting disclosure of subpoenas, please share them with us.”
The Commissioner did not respond to the Bank’s letter. The Bank informed the Commissioner that within 20 days it intended to forward copies of the subpoenas to its customers whose records were subpoenaed. The Commissioner filed an unsealed application in the district court listing the accounts by name and applied for an order requiring production of the documents. The Bank informed the district court that it had no objection to honoring the subpoenas, but it insisted on notifying its customers. The district court said: “The exact nature of the investigation, the manner in which the records are needed for the investigation, whether the records relate to targets of the investigation and other information about the investigation are not known.”
The Commissioner admitted that the sole authority for imposing confidentiality requirements on the Bank was the use of the term “private investigations” in K.S.A. 17-1265(a)(l).
DISCUSSION
Our task is to decide, based on the facts here, whether the legislature intended the Commissioner, under K.S.A. 17-1265(a)(l), to have the authority to tell the Bank that it cannot inform its customer that the Commissioner has subpoenaed the customer’s bank records. Stated another way, may a K.S.A. 17-1265(a)(l) private investigation be considered a confidential investigation so that the customer is not informed by the Bank of the subpoena?
We first consider the Bank’s contention that the district court erred in finding that the Commissioner had the authority to conduct confidential investigations. At issue here is the meaning of K.S.A. 17-1265(a)(l). We have unlimited review over questions of statutory interpretation. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
A threshold observation is that a court may not enforce a subpoena that exceeds the authority of the administrative agency issuing the subpoena. See Atchison, T.& S.F. Rly. Co. v. Lopez, 216 Kan. 108, 114-15, 531 P.2d 455 (1975). Generally, administrative agencies such as the Commissioner, as creatures of statute, may only act within the scope of authority granted by authorizing statutes. Legislative Coordinating Council v. Stanley, 264 Kan. 690, 706, 957 P.2d 379 (1998).
The Commissioner s authority to issue subpoenas is granted by K.S.A. 17-1265, which says in part:
“(a) The commissioner may: (1) Make public or private investigations within or outside of this state as necessary to determine whether any registration should be granted, denied or revoked or whether any person has violated or is about to violate any provision of this act or any rule or order hereunder, or to aid in the enforcement of this act or in the prescribing of forms or adoption of rules and regulations. . . .
“(c) For tlie purpose of any investigation or proceeding under diis act, the commissioner or any officer designated by the commissioner may administer oaths and affirmations, subpoena witnesses, compel their attendance, taire evidence, and require the production of any books, papers, correspondence, memoranda, agreements, or odier documents or records which the commissioner deems relevant or material to the inquiry.” (Emphasis added.)
K.S.A. 17-1265(a)(1) is similar to § 407 of the Uniform Securities Act of 1956 (Investigations and Subpoenas). The Commissioner also receives investigative authority under K.S.A. 50-1009, a provision of the Loan Brokers’ Act.
The district court interpreted the phrase “commissioner may . . . [m]ake public or private investigations” in K.S.A. 17-1265(a)(1) as a grant of authority to the Commissioner to conduct private investigations and to impose a requirement of confidentiality. The district court relied upon SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 81 L. Ed. 2d 615, 104 S. Ct. 2720 (1984). O’Brien plays a leading role in our resolution of the controversy here.
In O’Brien, the United States Supreme Court faced the question of whether the Securities and Exchange Commission (S.E.C.) was obligated to advise the target of an investigation that subpoenas had been issued to third parties. Those under investigation sought an injunction against the subpoenas. No statute addressed the issue. However, an S.E.C. regulation required all formal investigative proceedings to be nonpublic, unless otherwise ordered. O’Brien recognized that this rulemaking was within the authority of the S.E.C., which had been given broad power to issue subpoenas. That power, coupled with the S.E.C.’s rulemaking authority, was sufficient to empower the S.E.C. to conduct private investí. gallons with no notice to those targeted by the investigation of the subpoenas being issued to third parties. 467 U.S. at 743-47.
Also, O’Brien addressed the issue of whether there was an entitlement to notice in order to preserve the ability to object to the subpoenas. After discussing the procedural difficulties of requiring notice, Justice Marshall, speaking for a unanimous court, emphasized the important policy considerations underlying the power to conduct private investigations:
“A target given notice of every subpoena issued to third parties would be able to discourage the recipients from complying, and then further delay disclosure of damaging information by seeking intervention in all enforcement actions brought by the Commission. More seriously, the understanding of the progress of an SEC inquiry that would flow from knowledge of which persons had received subpoenas would enable an unscrupulous target to destroy or alter documents, intimidate witnesses, or transfer securities or funds so that they could not be reached by the Government. Especially in the context of securities regulation, where speed in locating and halting violations of the law is so important, we would be loathe to place such potent weapons in the hands of persons with a desire to keep tire Commission at bay.” 467 U.S. at 750-51.
The United States Supreme Court concluded it would not curtail the administrative agency’s discretion to decide when investigations should be private and when notice should be given. 467 U.S. at 751.
The Bank contends grand jury secrecy language in K.S.A. 22-3012 shows that the “legislature is unwilling to allow gag orders or other secrecy requirements, even though there is a risk that grand jury witnesses will notify . . . the target of a grand jury proceeding.” The Bank argues that it is illogical to conclude that the legislature “implicitly granted” such a “sweeping authority” to the Commissioner. K.S.A. 22-3012 says in part: “No obligation of secrecy may be imposed upon any person except in accordance with this rule.” A statutory interpretation counterargument would suggest that because the legislature covered secrecy in detail in K.S.A. 22-3012, it would have also done so in the Kansas Securities Act if that was its intention.
The Commissioner observes that administrative inquisition subpoenas are treated to a more relaxed standard of relevancy when compared to those in criminal and civil litigation. See In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. 237, 254-55, 891 P.2d 422 (1995). Thus, he suggests that statutes granting subpoena power must be construed broadly. See State v. Hobson, 234 Kan. 133, 144-45, 671 P.2d 1365 (1983) (a prosecutor may conduct an inquisition regarding charges pending against an accused after the accused has been bound over for trial); Yellow Freight System, Inc., v. Kansas Commission on Civil Rights, 214 Kan. 120, 124, 519 P.2d 1092 (1974) (the Civil Rights Commission’s subpoena power was not limited to documents relating to a scheduled hearing, even though the statutory language of K.S.A. 1971 Supp. 44-1005 granted the power only in conjunction with a hearing); Southwestern Bell Tel. Co. v. Miller, 2 Kan. App. 2d 558, 565, 583 P.2d 1042, rev. denied 225 Kan. 845 (1978) (a “common sense” construction of K.S.A. 1997 Supp. 22-3101[2] was found to include the power to subpoena documents, even though the inquisition statute only gave authority to subpoena witnesses).
The Bank also argues that the district court’s interpretation of K.S.A. 17-1265(a)(l) is contrary to the legislature’s use of the phrase “public or private” in other Chapter 17 provisions of the Kansas Statutes Annotated.
The Bank points out that a review of Chapter 17 reveals that the legislature used the phrase “public or private” many times in 11 different statutes. It contends that the legislature never intended “public or private” to be defined as “non-secret or secret.” The Bank argues that the legislature intended the term “public” to mean “of the state,” “with notice to public at large,” or “official.” The legislature, according to the Bank, intended the term “private” to mean “of private persons or entities,” “without notice to the general public,” or “unofficial.”
Our decision on the meaning of K.S.A. 17-1265(a)(l) involves the search for legislative intent. Ordinarily, when determining legislative intent, identical words or terms used in different statutes on a specific subject are interpreted to have the same meaning absent anything in the context to suggest that a different meaning was intended. T-Bone Feeders, Inc. v. Martin, 236 Kan. 641, 648, 693 P.2d 1187 (1985).
Chapter 17 covers a vast body of statutory law dealing with such dissimilar organizations as cemetery corporations, K.S.A. 17-1301 et seq., credit unions, K.S.A. 2000 Supp. 17-2201 et seq., and the formation of corporations, K.S.A. 2000 Supp. 17-6001 et seq. According to the Bank, the legislature in Chapter 17 used “public or private” to modify the following terms: “investigations” (K.S.A. 17-1265[a][l], securities regulation); “agency” (K.S.A. 17-2345[c], municipal housing authority; K.S.A. 17-4747[b], preparation of urban renewal plan; K.S.A. l7-4748[b], urban renewal powers); “hearings” (K.S.A. 17-2345[g], municipal housing law); “sale” (K.S.A. 17-2352, municipal bonds; K.S.A. 17-5424, guaranteed stock, savings and loan associations; K.S.A. 17-5558, liquidation of a savings and loan association; K.S.A. 17-6907, receiver, corporate property); “person” (K.S.A. l7-2345[c], municipal power to contract; K.S.A. 17-4747[b], submission of urban renewal plan; K.S.A. 17-4748[b], [f], contract for urban renewal); “sources” (K.S.A. 17-4748[e], to borrow money, municipality); and “corporation” (K.S.A. 17-4903[c], definition). The Bank contends that the legislature’s use of “public or private” to modify “hearings” and “sale” is relevant to the present situation. It argues that, like an investigation, a hearing or sale is an activity or event. Thus, the Bank concludes that the legislature intended the modifier “public or private” to have the same meaning for each of the three terms— “investigations,” “hearing,” and “sale.” We disagree.
Neither “public” nor “private” as used in either K.S.A. 17-1265(a)(1) or § 407 of the Uniform Securities Act is defined. The problem with the Bank’s “look elsewhere in Chapter 17” argument is that legislative selection of the words “public” and “private” will be influenced by the legislative intent behind each use. The Bank has cited no authority, neither a case nor regulation, state or federal, interpreting a statute similar to K.S.A. 17-1265(a)(l) in the manner it advances here.
The Bank’s position that the word “private” in K.S.A. 17-1265(a)(1) could not mean confidential or secret clashes with the Commissioner’s view on the word’s meaning.
A review of the parties’ opposing arguments suggests that the meaning of “private” in K.S.A. 17-1265(a)(l), so clear to each, may be ambiguous.
We note that “secret” is a synonym for “private.” Webster’s Ninth New Collegiate Dictionary 936 (1991) (Collegiate); Webster’s Third New International Dictionary 1805 (Unabridged ed. 1976) (International). “Private” and “secret” are both synonyms of “confidential.” Collegiate, p. 275; International, p. 476. As “synonyms,” these words have the same or nearly the same meaning in some or all senses. See Collegiate, p. 1198; International, p. 2320.
In interpreting 17-1265(a)(l), the Commissioner emphasizes the doctrine of operative construction. Application of the doctrine here would give deference to the Commissioner’s interpretation of the statute. The Bank counters by observing that no court can give deference to an interpretation that sanctions unauthorized unconstitutional conduct.
We have said in discussing and applying the doctrine: “ This court has long given great weight under the doctrine of operative construction to the interpretation of a statute by the administrative body charged with enforcing the statute.’ ” Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, 809, 667 P.2d 306 (1983) (quoting State v. Helgerson, 212 Kan. 412, 413, 511 P.2d 221 [1973]).
In re Application of Zivanovic, 261 Kan. 191, 192-94, 929 P.2d 1377 (1996), applied the doctrine by extending deference to the Board of Tax Appeals interpretation of the statute in issue. We said in Zivanovic:
“ ‘The ruling of an administrative agency on questions of law, while not as conclusive as its findings of facts, is nonetheless persuasive and may carry with it a strong presumption of correctness. . . .’
“ ‘Usually, interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to great judicial deference. [Citation omitted.] The agency’s interpretation of a challenged statute may, in fact, be entitled to controlling significance injudicial proceedings. Further, if there is a rational basis for the agency’s interpretation, it should be upheld on judicial review.’ [Citations omitted.]” 261 Kan. at 193.
See also State ex rel. Stephan v. Kansas Racing Comm’n, 246 Kan. 708, 719, 720-23, 792 P.2d 971 (1990) (disagreeing with the agency’s interpretation); Pittsburg State Univ. Chap. of K-NEA, 233 Kan. at 809 (agreeing with the agency’s interpretation). In Pittsburg State, we quoted the following from Harrison v. Benefit Society, 61 Kan. 134, 140, 59 Pac. 266 (1899): “ The rule is well settled that “in all cases of ambiguity the contemporaneous construction not only of the courts but of the departments, and even of the officials whose duty it is to carry the law into effect, is controlling.” ’ ” 233 Kan. at 809.
The K.S.A. 17-1265(a)(l) statutory interpretation call is ours to make. The doctrine of operative construction has an apt application here. Kansas has regulated securities since 1911. See Taylor v. Perdition Minerals Group, Ltd., 244 Kan. 126, 132, 766 P.2d 805 (1988). The Commissioner is charged with the administration of the Kansas Securities Act. K.S.A. 2000 Supp. 17-1270. “The purpose of the Kansas Securities Act is to place the traffic of promoting and dealing in speculative securities under rigid governmental regulation and control to protect investors, thereby preventing, so far as possible, the sale of fraudulent and worthless speculative securities.” Activator Supply Co. v. Wurth, 239 Kan. 610, 615, 722 P.2d 1081 (1986). The Commissioner looks to Justice Marshall’s language in O’Brien, quoted earlier in our opinion, to justify the confidentiality requirement. Confidentiality is necessary, the Commissioner claims, to carry out his statutory mission.
The Commissioner’s interpretation of K.S.A. 17-1265(a)(l), which we endorse under the facts here, applies to a customer’s bank records. The customers of the Bank whose records are the targets of the subpoenas have no expectation of privacy in those records, a subject we discuss more fully later in the opinion.
In our review of the district court’s order enjoining the Bank from notifying its customers, we find the Florida Supreme Court’s reasoning in Winfield v. Div. of Pari-Mutuel Wagering, 477 So. 2d 544 (Fla. 1985), instructive. Florida raised the privacy bar for each of its citizens by placing a Floridian’s right to privacy in the Florida Constitution. 477 So. 2d at 548; see also State v. Schultz, 252 Kan. 819, 828, 850 P.2d 818 (1993) (citing Winfield as rejecting United States v. Miller, 425 U.S. 435, 48 L. Ed. 2d 71, 96 S. Ct. 1619 [1976], and relying on the Florida Constitution to hold Floridians [unlike Kansans] have a legitimate expectation of privacy in their bank records).
In Winfield, the Florida agency overseeing pari-mutuel wagering issued various subpoenas to banks to obtain customer bank records. The agency gave no notice of the subpoenas to the customers and asked the banks not to inform the customers. In upholding the agency’s authority to subpoena the bank records without notice, the Winfield court said:
“We believe that file [Florida Constitutional] amendment should be interpreted in accordance with the intent of its drafters. Thus, we find that the law in the state of Florida recognizes an individual’s legitimate expectation of privacy in financial institution records. However, we further find that the state’s interest in conducting effective investigations in the pari-mutuel industry is a compelling state interest and that the least intrusive means was employed to achieve that interest. We also note that predisclosure notification by a bank to its customers should not be and is not mandated by article I, section 23. Thus, we hold that article I, section 23, of the Florida Constitution does not prevent the Division of Pari-Mutuel wagering from subpoenaing a Florida citizen’s bank records without notice.” (Emphasis added.) 477 So. 2d at 548.
The Winfield court held that the bank customers’ right of privacy in bank records, a state constitutional right, yields to an investigation of the pari-mutuel industiy, which, to be effective, must be conducted without notice. 477 So. 2d at 548.
Here, unlike the court in Winfield, we are not confronted with balancing a bank customer’s privacy interest in bank records with a state agency investigation because a Kansas citizen has no expectation of privacy in bank records. Schultz, 252 Kan. at 823-24. We are testing the Commissioner’s decision regarding what is required for an effective investigation in the securities field against the Bank’s desire to notify its customers that their bank records have been subpoenaed by the Commissioner. The Commissioner’s subpoena power is not self-executing. There is an avenue open to challenge the Commissioner’s alleged abuse of his investigative powers. Judicial intervention is required for subpoena enforcement. K.S.A. 17-I265(d). We indulge in the customaiy presumption that the Commissioner, as a public officer, will act in good faith. See Southwestern Bell Tel. Co., 2 Kan. App. 2d at 566.
A reasonable interpretation of the Commissioner’s K.S.A. 17-1265(a)(1) power to conduct private investigations includes the power to require confidentiality.
No Expectation of Privacy in Bank Records
The district court, relying on Schultz, held that under the circumstances the Bank’s customers had no reasonable expectation of privacy in their bank records. Thus, they were not entitled to receive notice that their bank records were the targets of the Commissioner’s subpoenas. As the district court noted, the question of whether Kansas bank customers have a right of privacy where subpoenas have been issued was decided in Schultz.
The Bank contends that its customers’ right to privacy under the Fourth Amendment to the United States Constitution was violated and urges us to overrule Schultz. The privacy issue involves a question of law, over which we have unlimited review. See Board of Johnson County Comm'rs v. Grant, 264 Kan. 58, 61, 954 P.2d 695 (1998). The Bank’s privacy policy said that it would “generally attempt to notify” its customers of subpoenas demanding the release of information, unless it was prohibited from doing so. However, the policy clearly informed the customers that they cannot always expect notification. We agree with the district court’s analysis:
“Further, the right to privacy statement of Bank of America does not create a privacy expectation. The policy statement merely assures that the Bank will ‘generally attempt to notify you (unless we are prohibited from doing so). Except as required by law or as described above, we do not share information with other parties, including government agencies.’ This language does not create a privacy expectation in a situation such as this where an agency is empowered to conduct an investigation in private. The subpoena falls into die category excepted by Bank of America’s recognition that it may be prohibited from notifying customers of the subpoena.”
In Schultz, a majority of this court adopted the rationale of Miller, 425 U.S. 435, and found that Kansas citizens have no constitutional right to privacy in their bank records. 252 Kan. at 834-35. In Miller, the United States Supreme Court held that bank customers have no reasonable expectation of privacy in their bank records because such records are “voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.” 425 U.S. at 442.
Schultz noted that Congress adopted the Right to Financial Privacy Act, 12 U.S.C. § 3401 et seq. (1988) (RFPA), in direct re sponse to and as criticism of the Miller decision. The RFPA requires that the customer have notice and an opportunity to object before the financial institution complies with a subpoena. Schultz, 252 Kan. at 831 (citing 12 U.S.C. § 3405 [1988]). Schultz also observed that although about one-third of the 50 states had enacted a state equivalent of the RFPA, the Kansas Legislature had not done so. Moreover, the majority rejected Schultz’ argument that § 15 of the Kansas Constitution Bill of Rights should be interpreted independently of the Fourth Amendment to the United States Constitution to provide heightened protection to Kansas citizens. 252 Kan. at 834.
The Bank relies on O’Connor v. Ortega, 480 U.S. 709, 94 L. Ed. 2d 714, 107 S. Ct. 1492 (1987), as authority for overruling Schultz. In Ortega, the United States Supreme Court held that the reasonableness of a privacy expectation depends upon current societal norms and upon the context in which the expectation arose. See 480 U.S. at 715-17. The Bank keys on the Ortega court’s observation: “Given the great variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.” 480 U.S. at 718. The Bank’s reasoning is misplaced. Ortega did not overrule Miller-, rather, its facts are distinguishable from those in Miller. Ortega dealt with the question of employees’ expectations of privacy in the workplace, whereas Miller dealt with the issue of bank customers’ right to privacy.
Justice Abbott, speaking for the majority in Schultz, pointed out that our neighboring states, Colorado by constitutional interpretation and Missouri, Oklahoma, and Nebraska by statute, offered their citizens greater privacy rights in financial matters than does Kansas. 252 Kan. at 831-32. We note that the legislature has been aware of Schultz’ teaching for 8 years and has taken no action to alter the Schultz holding. Schultz controls bank record privacy expectations in this jurisdiction. The Bank’s remedy would appear to fie in persuading the legislature to join the 17 states noted in the Bank’s brief, including our neighboring states, in enacting legislation estabfishing a privacy right in bank records.
The Bank observes that in 1999, the United States Congress passed the Gramm-Leach-Bliley Act (GLB), 15 U.S.C. § 6801 et seq. (1999 Supp.). The GLB says in part: “It is the policy of the Congress that each financial institution has an affirmative duty and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers’ nonpublic personal information.” 15 U.S.C. § 6801(a). The Bank argues that the holding in Schultz is inconsistent with the GLB, which provides privacy to bank customers. The GLB was neither briefed nor argued in the district court. The effect, if any, of the GLB on the issues here, is not before us. We note, however, that under the GLB, there is no right to privacy where authorized subpoenas have been issued. 15 U.S.C. § 6802(e)(8) (1999 Supp.).
Standing
The Commissioner argues that the Bank lacks standing to raise the constitutional rights of the third-party Bank customers. The Commissioner failed to raise this issue in the district court; thus,, the issue is not properly before us. See Ruddick v. Boeing Co., 263 Kan. 494, 498, 949 P.2d 1132 (1997). In addition, no cross-appeal has been filed. Consideration of the issue on appeal is precluded. See Vaughn v. Murray, 214 Kan. 456, Syl. ¶ 5, 521 P.2d 262 (1974).
A final observation. The Bank for the first time on appeal characterizes the Commissioner’s decision to “publicize the various subpoenas” by filing an unsealed application and then arguing confidentiality is “disingenuous.” The Commissioner responds by labeling the Bank’s argument “ingenuous.” The Commissioner points out he can only enforce subpoenas through judicial intervention under K.S.A. 17-1265(d). According to the Commissioner, had the Bank observed its own policy statement and complied with the subpoenas, no public proceeding would have been necessary. The names of the Bank’s customers that the Commissioner seeks to keep confidential are sprinkled throughout the court files and briefs of the parties, all public records. Resolution of the direction the Bank and the Commissioner travel with this puzzling development is not before us.
Affirmed.
Larson, J., not participating.
David S. Knudson, J., assigned. | [
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In In re Phillips, 260 Kan. 909, 925 P.2d 435 (1996), this court placed Daniel H. Phillips on supervised probation for 3 years with specified conditions. This court ordered that if respondent failed to abide by those conditions, a show cause order would issue and this court would take whatever action it deemed just and proper under the circumstances.
On the 13th day of August, 2001, this court issued an order to Daniel H. Phillips, an attorney admitted to the practice of law in Kansas, directing that he appear in person before this court on the 13th day of September, 2001, at 9 a.m. to show cause, if any he may have, why his supervised probation should not be revoked and appropriate discipline be imposed.
The show cause order was issued as a result of a motion filed by the office of the Disciplinary Administrator. The motion alleged failure on the part of respondent to abide by the conditions of his probation in that respondent tested positive for cocaine on three different occasions. The last time respondent tested positive for cocaine was after he had met with the Disciplinary Administrator and was advised that one more relapse would result in a recommendation that he be suspended from the practice of law.
On September 13, 2001, respondent appeared before this court in person and by counsel, G. Craig Robinson. He and his counsel responded to the show cause order by acknowledging respondent’s addiction to cocaine and that the recent uses of cocaine were relapses occurring during the recovery process.
Although such relapses may be acceptable as part of the recovery process, they are not acceptable as part of respondent’s probation. Each relapse is a violation of the law and cannot be sanctioned by this court. Respondent’s conduct also puts his practice and clients at risk. In In re Lockett, 270 Kan. 640, 645, 17 P.3d 917 (2001), we said:
“This is not a case of dishonesty or intentional harm to a client. It is a tragic example of human frailty and die consequences of addiction to crack cocaine. The panel makes a compelling case for probation, and we might have concurred had respondent appeared before this court and verified that he is participating in drug counseling and treatment and has continued to abstain from using illegal drugs. He failed to do either. Our ultimate goal here is to protect die public. See In re Jones, 252 Kan. 236, 239, 843 P.2d 709 (1992). We conclude diat goal can only be achieved in this case by indefinitely suspending the respondent.”
After due consideration of the argument of the Disciplinary Administrator and responses of respondent to the order to show cause, this court finds that respondent has failed to abide by the conditions of his probation or show cause why this court should not revoke his supervised probation and impose appropriate discipline.
It Is Therefore Ordered that respondent’s supervised probation be revoked and that Daniel H. Phillips be and he is hereby indefinitely suspended from the practice of law in the state of Kansas, effective September 13, 2000.
It Is Further Ordered that Daniel H. Phillips shall comply with Supreme Court Rule 218 (2000 Kan. Ct. R. Annot. 266), that he shall pay the costs of this action, and that this order be published in the official Kansas Reports.
Dated this 18th day of October, 2001. | [
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The opinion of the court was delivered by
Larson, J.:
Charles R. Robbins appeals his jury convictions of aggravated burglary, K.S.A. 1991 Supp. 21-3716; aggravated kidnapping, K.S.A. 21-3421 (Ensley 1988); kidnapping, K.S.A. 21-3420 (Ensley 1988); rape, K.S.A. 21-3502 (Ensley 1988); aggravated criminal sodomy, K.S.A. 21-3506 (Ensley 1988); and aggravated robbery, K.S.A. 21-3427 (Ensley 1988). Robbins asserts 10 distinct claims of error.
Factual background
The crimes were committed on January 25, 1992, but Robbins was not tried until October 1998, because he fled Kansas and was not located until late 1997 in a Florida prison under an assumed name.
The trial testimony revealed that the victims, Mr. and Mrs. G., knew Robbins and his cousin, Terry Sofranski, through relatives. Sofransld lived in the vicinity of Mr. G.’s cousin and Mrs. G. had met Robbins, whom she knew as “Chuck,” on several occasions.
On the evening of the alleged crimes, Mr. and Mrs. G. were in bed in their back bedroom with their small dog sleeping near their feet. A backyard light illuminated the bedroom. Sometime after midnight, Mrs. G. heard footsteps in the house, awoke her husband, and then called out, “[W]ho the hell is in my house?”
Mrs. G. testified she saw two figures appear in the doorway. One asked where her husband was and when she said he was not there, she was told that her husband better show himself or he would “blow” her “fuckin’ head off.” Mrs. G. recognized the voice as that of “Chuck” (Robbins). Robbins came into the bedroom and duct taped Mr. G. and then Mrs. G. She testified that she heard Sofranski saying "wrap 'em up, wrap 'em up,” but she was aware of only Robbins actually coming into the bedroom.
While Mrs. G. lay face down on the bed with her hands duct taped behind her, Robbins sexually assaulted her; he inserted his penis into Mrs. G.’s anus and he later put his finger in her vagina. She testified she was scared and begged him to please stop because he was hurting her. At some point he turned her over and duct taped her mouth, at which time she saw his face. From his voice and face, she had no doubt that it was Robbins who assaulted her.
The robbers found no money and she heard Sofranski’s voice coming from the front room, urging Robbins to leave, which they did shortly thereafter.
Mr. G.’s description of events was consistent with his wife’s. He heard Sofranski saying, “[W]rap 'em up.” He rolled over closer to the doorway as he was directed and was duct taped by Robbins with his hands behind his back and over his mouth and nose. He heard the man assaulting his wife and her saying, “you’re hurting me.”
Mr. G. testified that he had no weapons in the house but said he knew from experience what a pump-action shotgun sounded like and that he heard a noise in the kitchen like a shell being loaded in a pump-action shotgun. Mr. G. testified that he did not own a BB gun at the time of the break-in and only acquired one at a later date.
Mr. and Mrs. G. managed to free themselves from the tape. Their dog’s mouth and paws had also been taped, and they freed her as well. They discovered their television, VCR, stereo, and telephone were missing from the house. Their car had also been stolen. They dressed quickly and summoned the police.
Police Officer Timothy Hylton testified that on the night of the' incident, Mr. G. told him their home had been broken into and his wife had been raped. He said Mr. G. also told him that one of the intruders said he would kill Mrs. G. unless the Gs complied with their orders. Hylton testified that Mrs. G. consistently described what happened and identified the two intruders by name. The victims told the officer that they believed the weapon held by the intruders was a shotgun.
Mrs. G. received a medical examination where the assisting nurse documented a random pattern of red marks on Mrs. G.’s buttocks and red marks on both of her wrists. The examining doctor found no sperm on a vaginal swab taken for the rape kit, but he testified this was not necessarily inconsistent with what she said occurred.
The victims’ car was found later that day, and the television, stereo, and VCR were recovered from a party who had bought the items from Sofranski. The cumulative value of the three items was estimated at trial to be $750, and the purchaser testified that Sofranski had stated he was going to divide the money with Robbins.
Sofranski was arrested shortly after the incident and gave a statement which was used at Robbins’ trial. Sofranski was tried in 1992 and was convicted of burglaiy and theft. At Robbins’ trial, Sofranski testified that he had earlier stolen Mrs. G.’s keys and after entry to the house, he told Robbins to go back and make sure the Gs did not come out front while he gathered the items.
Sofranski testified they did not have a weapon, but they found a BB gun in the house which he took and later sold. In an earlier statement to the police, Sofranski had stated he and Robbins had a rifle-type BB gun which he took with him to the back room. Sofranski claimed he did not know what Robbins did in the back room during the time he was gathering items in the living room. In his police statement, however, Sofranski had stated that Robbins said something about taking Mrs. G. into another room and doing what he wanted with her. Sofranski testified that he never saw any duct tape. He said he finally got Robbins to leave with him, and they drove away in the Gs’ car.
Robbins testified he went with Sofranski to the Gs’ house but assumed they were allowed to be there. He said when he heard a lady yell, Sofranski told him to go in back and keep the people where they were. He claimed to have pulled his sweatshirt up over his face, then stood in the doorway where he saw the Gs in bed and recognized them. He testified he tried to lower his voice when he told them to be quiet. He denied using any duct tape, claimed that he had no weapons and saw no weapons, and denied sexually assaulting Mrs. G. He testified that he left with the items which were sold. After he was given a part of the money, he left for Arkansas a couple of days later. He claimed to have been drinking and that the alcohol affected his judgment, but he admitted that he knew what he was doing.
Robbins was convicted on all counts except an unlawful possession of a firearm charge. After his post-trial motions were denied, and he was sentenced, he appealed. We have jurisdiction under K.S.A. 22-3601(b)(l).
Statute of limitations
Robbins first argues that his prosecution was barred by the 2-year statute of limitations found in K.S.A. 1991 Supp. 21-3106(3). Subparagraph (4) of this statute states that the period within which a prosecution must be commenced does not include any period in which the accused is absent from the State. The offenses were committed on January 25, 1992, and Robbins had left Kansas according to the record by January 29,1992. He was not located until late 1997. His letter from Florida requesting disposition of his case was filed on May 4,1998. He was returned to Kansas and arrested on May 19, 1998. His trial commenced October 26, 1998. Out of the roughly 6 years and 5 months which passed between the commission of his offenses and the filing of the fourth amended information, he was out of the State for all but, at most, a month and a half. Based on these facts, the argument that the 2-year statute of limitations bars prosecution is spurious.
The speedy trial limits of the Interstate Agreement on Detainers
Robbins next argues the speedy trial limitation of the Interstate Agreement on Detainers found in K.S.A. 22-4401 et seq. was violated. The State argues this issue was waived by not being raised until after sentencing, but even if not waived, this claim has no merit.
There are two methods for disposition of charges pending against a prisoner incarcerated in another state under the Interstate Agreement on Detainers. State v. White, 234 Kan. 340, 342, 673 P.2d 1106 (1983).
Under the agreement, a detainer is a notice filed with the confining institution that criminal charges are outstanding in another jurisdiction and that the prisoner is wanted in order to stand trial. State v. Clark, 222 Kan. 65, 68, 563 P.2d 1028 (1977). Once a detainer is lodged, the authorities having custody of the prisoner must promptly inform the prisoner of the source and contents of the detainer and shall inform him or her of the right to request a final disposition thereof. K.S.A. 22-4401, Art. III (d); 222 Kan. at 67.
If the defendant enters a request for disposition under Article III of the Agreement, then the prisoner must be returned to the jurisdiction where the detainer has been filed and must be tried within 180 days after a written notice and his or her request have been delivered to the prosecuting officer and the appropriate court. K.S.A. 22-4401, Art. 111(a); White, 234 Kan. at 343; Clark, 222 Kan. at 67. The 180 days does not begin to run until the prisoner’s request has been received by both the prosecuting officer and the appropriate court in the receiving state. In re Habeas Corpus Application of Sweat, 235 Kan. 570, 578-79, 684 P.2d 347 (1984); White, 234 Kan. at 344-45. Under Article IV, a prisoner may also be returned pursuant to a request for temporary custody by the state where the charges are pending. If returned pursuant to such a request, then the prisoner must be tried within 120 days of arrival in the receiving state. K.S.A. 22-4401, Art. IV(d); White, 234 Kan. at 342-43; Clark, 222 Kan. at 67.
Kansas law enforcement did not learn of Robbins’ whereabouts until late 1997 when he was discovered incarcerated in Florida under the assumed name of James Zebus. On December 16,1997, an alias warrant was issued. After being notified of the charges pending, Robbins requested disposition of the charges on April 21, 1998. This request was mailed by registered certified mail by the Florida Department of Corrections on April 27, 1998, and was received by the Clerk of the District Court of Wyandotte County, Kansas, on May 4, 1998. The exact date of Robbins’ return to the state of Kansas is unclear from the available record, but it does show that on May 19, 1998, he was arrested, the warrant was returned, and he appeared in court in Kansas.
Assuming for purposes of this appeal that Robbins arrived in Kansas on May 19,1998, then between his return and his trial, 161 days passed. While Robbins argues 163 days passed, both numbers are more than the 120 days allowed where Article IV applies. However, if Article III applies, then the 180-day speedy trial limit of that article was not violated because, at most, 176 days passed between the date Robbins’ request for disposition was received by the proper authorities in Kansas and the date he was brought to trial in Kansas.
Robbins argues that because the State began a request for him to be returned he merely “acceded to their demand” and that this should bring him under the provisions of Article IV. The State more convincingly argues that its procedure was never completed because Robbins chose to file his request bringing into effect the provisions of Article III, including the 180-day limit of that Article.
Robbins’ request was mailed before the 30-day waiting period for honoring the State’s alleged April 9, 1998, request could have been completed. More importantly, the record indicates he was returned to Kansas, not because of any request by the State but, rather, expressly based upon his own request. This request was referred to in the Florida Department of Corrections letter offering temporary custody to Kansas and was attached to that letter with other necessary forms.
Based on the record, it is clear that Robbins was returned to Kansas pursuant to his Article III request, maldng the time limits of Article III applicable. His argument that both time limits applied was made and rejected in White, 234 Kan. at 342-43. Under the facts of this case, the speedy trial limits of the Agreement on Detainers were not violated and Robbins was timely tried.
The amendment of the charges
In the fourth amended information, two new charges were added, several of the crimes were charged as aggravated, and alternative means of committing some of the crimes were changed and/or added. This is the basis for Robbins also asserting the Interstate Agreement on Detainers was violated by the State trying him on charges that were added or amended after his request for disposition of his outstanding charges. This is a question of law subject to unlimited review.
In the first place, the agreement of Detainers does not contain any provisions making amendments impermissible. In fact, Article V(d) of the Agreement states:
“The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, information or complaints which form the basis of tire detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction.” (Emphasis added.)
The fact that Sofranski was charged with lesser crimes has no significance although Robbins argues otherwise. The amended and added charges on which Robbins was finally prosecuted clearly arose out of the same transaction as that which gave rise to the first three informations. The State was not precluded by the Interstate Agreement on Detainers from making the amendments.
The jury instructions for aggravated robbery
Robbins next asserts the jury instruction on aggravated robbery was clearly erroneous because it did not include a definition of dangerous weapon like that found in State v. Childers, 16 Kan. App. 2d 605, 830 P.2d 50 (1991), rev. denied 250 Kan. 806 (1992). Intertwined with this argument is his assertion that the trial court responded improperly to the jury’s question regarding whether a BB gun is a firearm.
The jury was instructed that to find Robbins guilty of the aggravated robbery of Mrs. G., it must find that Robbins intentionally took her properly, the taking was by force or threat of bodily harm, and that the defendant was armed with a dangerous weapon, to-wit, a firearm or that the defendant inflicted bodily harm on any person [Mrs. G.] in the course of the robbery.
In Childers, a subjective test was correctly held applicable to the question of whether there was a dangerous weapon. 16 Kan. App. 2d at 612-14. The jury had been instructed in the following manner:
“ ‘AS USED IN THIS INSTRUCTION A “DANGEROUS WEAPON” IS:
“A. ANY OBJECT INTENDED BY THE USER TO CONVINCE THE VICTIM THAT IT IS A DANGEROUS WEAPON; AND
“B. WHICH A REASONABLE PERSON UNDER ALL OF THE THEN. EXISTING CIRCUMSTANCES WOULD BELIEVE IS A DANGEROUS WEAPON.’ ” 16 Kan. App. 2d at 615.
This is substantially the same definition as given in PIK Crim. 3d 56.31, which states: “[An object can be a dangerous weapon if intended by the user to convince the victim that it is a dangerous weapon and which the victim reasonably believed to be a dangerous weapon.]”
The Notes on Use state:
“When there is an issue as to whether the defendant was ‘armed with a dangerous weapon,’ the bracketed definition should be used. State v. Colbert, 244 Kan. 422, 769 P.2d 1168 (1989). In Colbert, the Court held in Syl. ¶ 3: Whether or not a robber is ‘armed with a dangerous weapon’ for aggravated robbery purposes is determined from the victim’s point of view (K.S.A. 21-3427). An object can be a dangerous weapon if intended by the user to convince the victim that it is a dangerous weapon and the victim reasonably believes it is a dangerous weapon. Hence, an unloaded gun or a gun with a defective firing mechanism may be a dangerous weapon within the purview of the aggravated robbery statute.”
There was no objection to the aggravated robbery instruction and, therefore, our standard of review is whether the instruction was clearly erroneous.
Several of our cases have reiterated the rule that it is not necessary for the State to show that the robber actually exhibited a weapon, and it is only required that there be some substantial evidence to raise a reasonable inference that the defendant was armed. See State v. Holbrook, 261 Kan. 635, 639, 932 P.2d 958 (1997); State v. Robertson, 225 Kan. 572, 574, 592 P.2d 460 (1979). A review of these cases indicates that it was error not to include the recommended PIK definition for a dangerous weapon; however, we find that the omission was not clearly erroneous. In this case, the question of whether there was a dangerous weapon for purposes of aggravated robbery hinged on whether the Gs’ version of die robbery was believed or the defendant’s. Robbins denied having any weapon and denied ever threatening to use a weapon against the Gs. The Gs testified to hearing a weapon and being threatened with being shot. They told the police that they thought there was a weapon. The jury dearly believed the Gs rather than Robbins, and the evidence supported- a finding that there was a dangerous weapon within the meaning of the definition.
Robbins also complains about the trial court’s response to the jury’s mid-deliberation question. “We need to know if a BB rifle is considered a firearm.” After a conference, the court noted that the term “firearm” was used in both the aggravated robbery instruction and the felony possession of a firearm instruction. The court attempted a definition covering both instances and told the jury that as to the aggravated robbeiy charge, a BB gun may be considered to be a dangerous weapon, but as to the felony possession of a firearm charge, a BB gun may not be considered to be a dangerous weapon.
Robbins argues this answer was erroneous. The trial court has great discretion regarding the extent and substance of its responses under K.S.A. 22-3420(3) to jury questions during deliberations regarding matters of law or evidence in the case. State v. Morris, 255 Kan. 964, 985-86, 880 P.2d 1244 (1994). We said in Morris: “The important consideration is that the jury be properly instructed on the essential issues presented at the trial, and this is particularly true in a criminal proceeding when the question presented by the jury involves the basic elements of the criminal offense on which the defendant is being tried.” If reasonable persons could differ about the propriety of the trial court’s decision, there will be no abuse of discretion. Morris, 255 Kan. at 986.
Defense counsel told the trial court that the answer “should include the statement .‘if perceived as such by the victim.’ ” He argues that had his suggestion been followed, the jury would have acquitted Robbins of aggravated robbeiy and most of the other charges. We do not agree. The court’s response was actually technically correct: a BB gun could be considered a dangerous weapon — depending on the circumstances. However, in retrospect, a better answer might have been to supply the juiy with the recommended PIK instruction defining dangerous weapon for purposes of the aggravated robbeiy charge. As we have stated, the jury resolved this matter based upon the credibility of Robbins’ versus the Gs’ version of the events. The jury found Robbins not guilty of the possession of a firearm charge and obviously believed the Gs’ testimony, which was certainly sufficient to uphold the existence of a dangerous weapon in this case. No different outcome would have been reached had the “if perceived as such by the victim” wording championed by Robbins been given.
Instruction of voluntary intoxication
Robbins also asserts that the trial court erred in denying his request for an instruction on voluntary intoxication. His argument lacks merit. For specific intent crimes, voluntary intoxication is only considered as a defense if it renders the defendant “substantially incapable of knowing or understanding the wrongfulness of his conduct and of conforming his conduct to the requirements of law.” K.S.A. 21-3208(1). Here, Robbins by his own testimony indicated he knew what was happening and decided to continue with the crime because he figured he was in trouble anyway. He made an effort to conceal his face and voice which showed his awareness of the criminal nature of his acts. The evidence showed that he knew exactly what he was doing and knew it was wrong. The trial court did not err in dechning to give an instruction for voluntary intoxication.
Lesser included crimes
Robbins next contends the trial court erred in not instructing the jury on the lesser included crimes of attempted aggravated criminal sodomy of Mrs. G. and unlawful criminal restraint of Mr. G. Our rule is well recognized that a criminal defendant is entitled to instructions on all lesser included offenses supported by the evidence at trial as long as: (1) such evidence, when viewed in the light most favorable to the defendant’s theory, would justify a verdict in accord with that theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense. State v. Moncla, 262 Kan. 58, 73-74, 936 P.2d 727 (1997); see also State v. Borthwick, 255 Kan. 899, Syl. ¶ 10, 880 P.2d 1261 (1994) (trial court’s duty to instruct arises only when the evidence at trial is such that the defendant might reasonably be convicted of the lesser offense).
Robbins argues that attempted criminal sodomy should have been instructed on because there was no physical evidence that rape or criminal sodomy took place and, further, because the jury could have concluded that his attempts at penetration were unsuccessful due to intoxication. This argument is without merit. Mrs. G. testified she was anally sodomized and that her vagina was digitally penetrated. Robbins denied that he ever sexually assaulted Mrs. G. in any way. He either committed the crimes or he did not; there was no evidence of an attempt and a lesser included charge for attempted aggravated criminal sodomy was not required by the evidence.
As to the unlawful restraint contention, Robbins argues that he did not actually kidnap Mr. G., but only unlawfully restrained him. His argument that there was no evidence of force or threat is without merit and is directly contradicted by the Gs. K.S.A. 21-3424 (Ensley 1988) defines unlawful restraint as “knowingly and without legal authority restraining another so as to interfere substantially with his liberty.” As relevant here, kidnapping is “the taldng or confining of any person, accomplished by force, [or] threat. . . , with the intent to hold such person: . . . . (b) [t]o facilitate flight or the commission of any crime; or (c) [t]o inflict bodily injury or to terrorize the victim or another.” K.S.A. 21-3420 (Ensley 1988). Robbins was charged with taking or confining Mr. G. by force or threat. The jury was instructed that it must find that Robbins took or confined Mr. G. by force or threat with intent to inflict bodily injury or to terrorize him or to facilitate the commission of a crime, to wit: aggravated robbery, robbery, or theft.
This was clearly not a case of mere unlawful restraint. At the least, the evidence showed use of force or threat to carry out Mr. G.’s confinement. The evidence did not support a finding that Robbins merely knowingly and without legal authority restrained Mr. G. The unlawful restraint instruction need not have been given.
Cumulative error
Robbins attempts a cumulative error argument by stating the previous alleged errors, coupled with the taking of his motion to dismiss the unlawful possession of a firearm under advisement rather than ruling on it, and the failing to define a dangerous weapon somehow resulted in cumulative error. We have stated:
“Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.” State v. Humphery, 267 Kan. 45, Syl. ¶ 10, 978 P.2d 264 (1999).
We note that the jury acquitted Robbins of the charge of unlawfully possessing a firearm within 10 years of having been convicted of a felony, and the evidence against Robbins on the other charges was overwhelming. Based on our review of the record, we do not believe Robbins was denied a fair trial by reason of cumulative trial error.
Multiplicity
The argument Robbins makes with the most merit and which poses the most difficulty for us is that the crimes of aggravated robbery, aggravated kidnapping, kidnapping, rape, and aggravated criminal sodomy were multiplicitous. Whether convictions are multiplicitous is a question of law subject to unlimited review. State v. Vontress, 266 Kan. 248, 255, 970 P.2d 42 (1998). Multiplicity is the charging of a single offense in several counts of a complaint or information. The reason multiplicity must be considered is that it creates the potential for multiple punishments for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and section 10 of the Kansas Constitution Bill of Rights. In Vontress, we said:
“The State may not split a single offense into separate parts where there is a single wrongful act which does not furnish the basis for more than one criminal prosecution. However, where the criminal conduct of the defendant supports convictions for more than one crime, K.S.A. 21-3107 provides statutory authority for multiple convictions even though the criminal conduct of a defendant consists of a single transaction. State v. Mincey, 265 Kan. 257, 262, 963 P.2d 403 (1998).
“The test concerning whether a single transaction may constitute two separate and distinct offenses is whether the same evidence is required to sustain each charge. If not, the fact that both charges relate to and grow out of the same transaction does not preclude convictions and sentences for both charges. 265 Kan. at 262-63. Multiplicity does not depend upon whether the facts proved at trial are actually used to support conviction of both offenses charged; rather, it turns upon whether the elements of proof necessary to prove one crime are also necessary to prove the other. 265 Kan. at 263.” 266 Kan. at 255-56.
In examining a multiplicity issue, we are mindful that a single offense may not be divided into separate parts and a single wrongful act may not generally furnish the basis for more than one criminal prosecution; offenses do not merge where each offense requires proof of a fact not required in proving the other; and offenses do not rise out of a single wrongful act where they are committed separately and severally at different times and places. Mincey, 265 Kan. at 265.
K.S.A. 21-3107, as applicable in January 1992, states in pertinent part:
“(1) When die same conduct of a defendant may establish die commission of more dian one crime under the laws of this state, die defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count ....
“(2) Upon prosecution for a crime, the defendant may be convicted of eidier die crime charged or an included crime, but not bodi. An included crime may be any of the following:
(a) A lesser degree of the same crime;
(b) an attempt to commit the crime charged;
(c) an attempt to commit a lesser degree of the crime charged; or
(d) a crime necessarily proved if die crime charged were proved.”
Thus, K.S.A. 21-3107(2) does not permit a defendant to be convicted of both the crime charged and an included crime of the crime charged.
Subsection (2)(d) is relevant to some of Robbins’ multiplicity arguments. In determining whether a crime is an “included crime” under K.S.A. 21-3107(2)(d), a two-prong test as described in State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988) applies. The first step is to determine whether all of the statutory elements of the lesser crime are among the statutory elements required to prove the greater crime. If so, then the lesser crime is a lesser included offense of the greater crime. Even if the elements differ, the inquiry is not over. Under the second prong, the court determines whether the factual allegations of the charging document and the evidence required to be adduced at trial to prove those allegations would also necessarily prove the lesser crime. If so, then there is multiplicity. State v. Warren, 252 Kan. 169, 175-81, 843 P.2d 224 (1992). The Fike test has been frequently applied in performing multiplicity analyses. K.S.A. 21-3107 was amended effective July 1, 1998. L. 1998, ch. 185, § 1. Although Fike appears irrelevant under the amended statute, the prior version applies in this case.
(A) Rape and aggravated criminal sodomy. Robbins asserts that the rape and aggravated criminal sodomy were really one crime. Robbins’ act of penetrating Mrs. G.’s vagina with his finger was completely separate from his act of penetrating Mrs. G.’s anus with his penis. The elements of the two crimes do not match; the facts for one did not necessarily prove the other; and the acts were committed separately, entailed penetration of different parts of Mrs. G.’s body, and entailed the use of different “objects” for penetration. See K.S.A. 1991 Supp. 21-3501(1); K.S.A. 21-3502(l)(a) (Ensley 1988); K.S.A. 21-3506(c) (Ensley 1988); K.S.A. 1991 Supp. 21-3501(2); State v. Zamora, 247 Kan. 684, 693-94, 803 P.2d 568 (1990). Robbins speculates that he only stuck his finger in Mrs. G.’s vagina while looking for her anus. There is no evidence to support such a theory. This argument lacks merit.
(B) Aggravated robbery and aggravated kidnapping. Robbins also argues that the State relied on the aggravated robbery as an element of the crime of aggravated kidnapping and that, therefore, the aggravated robbery is a lesser included crime of the aggravated kidnapping. He seems to be referring to the “intent to facilitate” aspect of ihe aggravated kidnapping charge.
For aggravated kidnapping, Robbins was charged with taking or confining Mrs. G. by force or threat, done with intent to hold Mrs. G., to inflict bodily injury or to terrorize the victim or another, or to facilitate the commission of a crime, to wit: aggravated robbery, and that Robbins inflicted bodily harm on Mrs. G. The jury was instructed that a conviction would also be appropriate if the taking or confining was carried out with the intent to hold Mrs. G. to facilitate a robbery or theft, as these were lesser included crimes of the aggravated robbery on which the jury had been instructed. To convict Robbins of aggravated robbery, the jury had to find that Robbins unlawfully took a VCR, stereo, and television from the presence of Mrs. G. by force or threat of bodily harm to Mrs. G., and that Robbins was armed with a dangerous weapon or that he inflicted bodily harm on Mrs. G. in the course of such robbery.
The elements of the two crimes are clearly not identical. It was not necessary for the State to prove an aggravated robbery in order to prove that an aggravated kidnapping was done with the intent to hold Mrs. G. for the purpose of facilitating an aggravated robbery. “The crime of kidnapping as defined in K.S.A. 21-3420 is completed when the defendant forcefully takes another for the purpose of facilitating flight or the commission of any crime. The statute does not require a conviction or even the filing of a complaint on the underlying crime in order to properly charge the defendant with kidnapping.” McLain v. State, 14 Kan. App. 2d 329, Syl. ¶ 3, 789 P.2d 1201, rev. denied 246 Kan. 768 (1990). The same has been said with regard to charging and convicting a defendant on aggravated kidnapping. See Carmichael v. State, 18 Kan. App. 2d 435, Syl. ¶ 8, 856 P.2d 934 (1993), aff'd in part and rev’d in part on other grounds Carmichael v. State, 255 Kan. 10, 872 P.2d 240 (1994). The elements of proof to sustain one charge were not the same as those required to sustain the other and the allegations of the aggravated kidnapping charge did not require evidence to be adduced at trial which would necessarily prove the aggravated robbery. Moreover, the confinement was not slight or merely incidental to the aggravated robbeiy and had significance independent of the aggravated robbery such that the aggravated kidnapping constituted a separate crime. See State v. Hammond, 251 Kan. 501, 505-06, 837 P.2d 816 (1992) (finding no multiplicity between aggravated robbery and aggravated kidnapping charges under similar facts).
(C) Aggravated kidnaffing, rafe, and aggravated criminal sodomy. Finally, Robbins argues the aggravated kidnapping, rape, and aggravated criminal sodomy of Mrs. G. were part of one continuous transaction and that because the State relied on rape or aggravated criminal sodomy to establish bodily harm for the charge of aggravated kidnapping, it makes these charges multiplicitous. The State’s response is not helpful as it consists of merely comparing the statutory elements of the crimes. Clearly the statutory elements of each crime required proof of elements not included in the other crimes. That is not the real point of contention in this case, however.
The fact that several charges relate to and grow out of the same transaction does not preclude convictions and sentences for each; rather, the question is whether the elements of proof necessary to prove one crime are also necessary to prove the other. Vontress, 266 Kan. at 256. Robbins’ “same transaction” argument is not dis-positive. The confinement of the aggravated kidnapping through the binding of Mrs. G.’s hands behind her back was not inconsequential or merely incidental to the rape or aggravated criminal sodomy as it exceeded the force necessary to accomplish the sex crimes. Cf. State v. Coberly, 233 Kan. 100, 661 P.2d 383 (1983) (finding sufficient evidence to support both aggravated kidnapping and rape as separate crimes where confinement not inconsequential or incidental to the rape). Furthermore, Mr. G. testified that his hands were first bound, then his wife was bound, then Robbins returned to Mr. G. to tape his face. Only then did he climb up on the bed and rape and sodomize Mrs. G. This separated the initial binding of Mrs. G. from the later sex acts.
However, Robbins’ argument that rape and aggravated criminal sodomy were used to establish bodily harm for the aggravated kidnapping deserves closer attention. The difference between kidnapping and aggravated kidnapping is that the greater crime requires the infliction of bodily harm. K.S.A. 21-3421. It is clear that rape and aggravated criminal sodomy can be used to satisfy the bodily harm element of an aggravated kidnapping charge. See State v. Peltier, 249 Kan. 415, 420, 819 P.2d 628 (1991), cert. denied 505 U.S. 1207 (1992).
Although the charging document in this case did not specify that rape and/or sodomy was the bodily harm, the State made clear at trial that it was only relying on the rape and sodomy to establish bodily harm and not on any other suggested violence or physical injury.
At the jury instruction conference, the prosecutor specifically told the court that the kidnapping was charged as an aggravated kidnapping on the basis that the bodily harm to support that charge was either the rape or the aggravated criminal sodomy and that an instruction on the lesser charge of kidnapping was necessary because defense counsel was going to argue that the rape and aggra vated criminal sodomy had not occurred. Later, when defense counsel questioned whether the State intended to rely on the red marks on Mrs. G.’s wrists, or instead on the sex crimes for the bodily harm element of the aggravated kidnapping charge, the prosecutor responded that it was only the rape or the aggravated criminal sodomy that would constitute the bodily harm in this case and that the minimal bruising on Mrs. G.’s wrists was not the basis for the State’s allegations of bodily harm as the State did not believe those injuries were sufficient in this case.
The last part of the aggravated kidnapping instruction stated:
“ ‘Bodily harm’ includes any act of physical violence, even though no permanent injury results. Unnecessary acts of violence upon the victim, and those occurring after the initial abduction would constitute ‘bodily harm.’ Rape and Aggravated Criminal Sodomy are acts of violence unnecessary to and not a part of the kidnapping itself.”
In closing argument, the prosecutor told the jury:
“It [kidnapping] becomes aggravated when you inflict bodily injury upon someone, and sexually assaulting someone is bodily injury. All that’s in the instructions. ... So the only difference between the aggravated kidnapping against [Mrs. G.] and the simple kidnapping of [Mr. G.] is the fact that [Mrs. G.] was sexually assaulted. If you don’t believe [Mrs. G.] was sexually assaulted, then tire lesser crime is the crime of kidnapping so you have those choices to make on that charge.”
It is clear from the evidence and arguments at trial that the State was requiring the jury to convict on at least one sex crime in order to convict for aggravated kidnapping.
There are several cases which say that a sex crime used to support the bodily harm for aggravated kidnapping is not multiplicitous with, and/or is not an included offense of, the aggravated kidnapping. See State v. Chears, 231 Kan. 161, 162-63, 643 P.2d 154 (1982) (comparing elements to conclude that aggravated sodomy and aggravated kidnapping were not multiplicitous even though the sodomy was used to supply the element of bodily harm to make the kidnapping aggravated); Wisner v. State, 216 Kan. 523, 525, 532 P.2d 1051 (1975) (comparing statutoiy elements to find rape is not a lesser included offense of aggravated kidnapping even though the State relied on rape to prove the element of bodily harm for aggravated kidnapping); Sharp v. State, 203 Kan. 937, 942, 457 P.2d 14 (1969) (relying on Brown and Ayers to find no double jeopardy from convictions for both first-degree kidnapping and forcible rape where the rape provided the bodily harm to support the first degree kidnapping); State v. Ayers, 198 Kan. 467, 472, 426 P.2d 21 (1967) (even though rape supplied the element of bodily harm required by first-degree kidnapping statute, prosecution for both offenses not barred); State v. Brown, 181 Kan. 375, 389-90, 312 P.2d 832 (1957) (same). However, these cases predate Fike, 243 Kan. 365, and they tend to only apply the identity of the elements test contained in the first prong of the Fike test.
Two cases post-dating Fike, however, have considered the issue. The first is State v. Blackburn, 251 Kan. 787, 795, 840 P.2d 497 (1992), where the defendant argued that his convictions of aggravated kidnapping and rape were multiplicitous because they involved the same force and bodily harm. The jury had been instructed that bodily harm includes, but is not limited to, the act of rape. 251 Kan. at 795-96. The Blackburn court reasoned that the jury was not required to find that rape was the bodily harm inflicted upon the victim and also noted that evidence of bodily harm, in addition to rape, had been supplied by the victim’s testimony. The court found that the evidence introduced to prove aggravated kidnapping and rape did not involve the same force and bodily harm, that the elements of the two crimes were not the same, and that each required proof of a fact not required in proving the other. The opinion then cited Wisner, 216 Kan. 523, in summarily rejecting Blackburn’s claim that the rape was a lesser included offense of the aggravated kidnapping. 251 Kan. at 796.
Wisner, of course, was decided before Fike, and the two-prong Fike test was not expressly discussed or applied in Blackburn. However, the analysis of Blackburn could be viewed as loosely following a Fike test because the opinion seemed to reason that not only were the statutory elements different but also, on the facts of the case, the evidence introduced to prove each crime did not involve the same force and bodily harm. In any event, Blackburn is distinguishable from the present case where the prosecutor expressly told the jury, court, and opposing counsel that the State was relying only on the sex crimes to satisfy the element of bodily harm for the aggravated robbery.
The second case is State v. Morfitt, 25 Kan. App. 2d 8, 956 P.2d 719, rev. denied 265 Kan. 888 (1998), where the defendant was convicted of several crimes, including aggravated kidnapping and aggravated indecent liberties. The information alleged that the bodily harm or force element was committed when Morfitt committed aggravated indecent liberties upon the victim. The evidence showed that Morfitt drove the victim around on the pretense of looking for her father and committed aggravated indecent liberties during the trip by placing his hands on her breasts and vaginal area. The Court of Appeals found that under the information and the evidence adduced at trial, there was one continuous act of force and that the crimes were multiplicitous. Although Morfitt seems to intertwine its discussion of bodily harm and force, it seems implicit in Morfitt that the court was not only bothered by the continuity of the force behind the offenses, but also by the fact the sex crime supplied the bodily harm for the aggravated kidnapping.
In addressing the second prong of Fike in State v. Gibson, 246 Kan. 298, 300, 787 P.2d 1176 (1990), we cautioned against confusing what the State may have actually proved in its evidence with what the State was required to prove to establish the crime charged and stated that the mere fact the evidence adduced in proving the crime charged may also prove some other crime does not make the other crime an included offense under K.S.A. 21-3107(2)(d). We have also emphasized that under the second prong of the Fike test, the court should look at the charging document as well as the evidence that must be adduced at trial to prove the crime charged, and if the evidence which must be adduced at trial to prove the crime charged would also necessarily prove the lesser crime, then the lesser crime is an included crime under K.S.A. 21-3107(2)(d). See State v. Clardy, 252 Kan. 541, 543, 847 P.2d 694 (1993).
In Vontress, 266 Kan. 248, we found convictions of aggravated battery and aggravated robbery multiplicitous where the sole allegation in the complaint of bodily harm for both offenses was the victim’s gunshot wounds. Even though each charge required proof of a statutory element not required by the other, we found that under the complaint and evidence, to prove the bodily harm for aggravated robbery, the State was required to prove one fact — that Vontress shot the victim — the same fact necessary to prove great bodily harm for the aggravated battery. 266 Kan. at 256-57.
In the present case, the charging document did not expressly state that rape or aggravated criminal sodomy was the bodily harm for the aggravated kidnapping charge. However, we deem it significant that the prosecutor expressly told the jury that it was only relying on the sex crimes to prove bodily harm for aggravated kidnapping and told the jurors that if they did not believe the sex crimes occurred, then they should convict only for kidnapping. Thus, as to at least one of the sex crimes, the same evidence used to prove an element of the aggravated kidnapping was also necessary to prove the sex crime, and the jury would necessarily have found Robbins guilty of at least one of the sex crimes upon finding him guilty of the aggravated kidnapping. Under these unique circumstances, we conclude that the convictions are multiplicitous.
The crime which is actually multiplicitous under these unique facts is that of aggravated kidnapping. Without the sex crime evidence, the necessary element of bodily harm is not proved. This does not mean, however, that the crime of kidnapping of Mrs. G. was not proved by substantial competent evidence.
Our situation here is similar to State v. Kingsley, 252 Kan. 761, 782, 851 P.2d 370 (1993), where a conviction of aggravated arson was not deemed to be supported by sufficient evidence, but there was substantial evidence of the lesser offense of arson. In Kingsley, we followed State v. Moss, 221 Kan. 47, 50, 557 P.2d 1292 (1976), and State v. Smith, 4 Kan. App. 2d 149, 153, 603 P.2d 638 (1979), and reversed the aggravated arson conviction and vacated the sentence thereunder but affirmed a conviction of the lesser offense of arson and remanded for resentencing of that offense.
We follow Kingsley and reverse the conviction of aggravated kidnapping and vacate the sentence thereunder but affirm the conviction of the lesser offense of kidnapping and remand for sentencing on that offense. We recognize this will not change the controlling sentences because both rape and aggravated criminal sodomy were class B felonies, and, with the exception of the kid napping of Mr. G., all sentences in this case were ordered to run concurrently. It is necessary, however, to have Robbins sentenced to the proper crime of conviction, and we must remand for him to be sentenced to the kidnapping of Mrs. G.
This result is consistent with State v. Garcia, 272 Kan. 140, 32 P.3d 188 (2001). As is pointed out in Garcia, the multiplicity analysis changes as the result of the 1998 amendments to K.S.A. 21-3107, but the crimes here were committed in 1992 requiring the result we reach herein. 272 Kan. at 147.
Sufficiency of the evidence
Robbins next argues there was insufficient evidence to support his convictions for the kidnapping of Mr. G. and the aggravated robbery of Mrs. G. In reviewing a challenge to the sufficiency of the evidence, our standard is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Johnson, 266 Kan. 322, 326, 970 P.2d 990 (1998).
In order to convict Robbins of kidnapping Mr. G., the jury was instructed that it had to find Mr. G. had been taken or confined by force or threat and that this was done with the intent to inflict bodily injury or to terrorize the victim or another, or to facilitate the commission of a crime, to wit: aggravated robbery, robbery, or theft.
There was sufficient evidence that the confinement of Mr. G. involved force or threat and that it was done to inflict bodily injury, as he was taped beyond that necessary to facilitate the crimes. Robbins’ statements and other actions also provided evidence of an intention to terrorize. See State v. Hammond, 251 Kan. 501, 505, 837 P.2d 816 (1992); State v. Maxwell, 234 Kan. 393, 400, 672 P.2d 590 (1983). Finally, there was more than sufficient evidence to show that the confinement was done to facilitate commission of an aggravated robbery, robbery, or theft. There was clearly sufficient evidence to support the conviction for kidnapping Mr. G.
As to the aggravated robbery charge, a VCR, a stereo, a television, and an automobile were taken from the presence of Mrs. G. by force or threat of bodily harm while Robbins was armed with a dangerous weapon in violation of K.S.A. 21-3427. As previously discussed, the evidence showed that Robbins was armed with a dangerous weapon under the applicable subjective definition required for this offense. Robbins’ argument that the property was not in Mrs. G.’s presence is without merit. See State v. Hays, 256 Kan. 48, 64-65, 883 P.2d 1093 (1994) (property taken from one room of victim’s home while victim is restrained in another room was taken from her presence). There was sufficient evidence to uphold the conviction for aggravated robbery.
Motion in limine
Finally, Robbins contends the trial court abused its discretion by denying his motion in fimine whereby he sought to exclude any mention of the Gs dog. If a motion in limine is denied, the party who made the motion must object to the evidence at trial to preserve the issue for appeal. State v. Ordway, 261 Kan. 776, Syl. ¶ 6, 934 P.2d 94 (1997). Robbins failed to object at trial to the numerous references to the dog. This issue is not preserved for appeal.
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|
The opinion of the court was delivered by
Allegrucci, J.:
Charles Roberson was convicted by a jury of first-degree premeditated murder, aggravated robbery, aggravated battery, and forgery. He was sentenced to the hard 40 with 141 additional months to run consecutively. He appeals his murder conviction and hard 40 sentence. Roberson does not contest his convictions for aggravated robbery, aggravated battery, and forgery.
The issues are whether: (1) the trial court erred in failing to provide the jury with a verdict form that allowed the jury to find defendant not guilty of premeditated first-degree murder due to mental disease or defect and in failing to instruct the jury on the effect of a verdict of not guilty of first-degree murder due to mental disease or defect; (2) the State is required to give notice of intent to request a hard 40 sentence and, prior to sentencing, to give defendant notice of the aggravating factors on which it would rely in seeking the hard 40 sentence; (3) the trial court abused its discretion in admitting evidence of specific instances of defendant’s prior conduct; (4) it was error for the trial court to instruct and the prosecutor to argue that the jury should consider lesser offenses only after concluding that defendant was not guilty of the charged offense of premeditated murder; and (5) the Kansas hard 40 sentencing scheme is unconstitutional.
Anita Wilridge died on February 21, 1999, as a result of being stabbed and cut. A stab wound to her left back was pinpointed as the actual cause of death. She had a bruise on her scalp, cuts on her face and under her chin, and a slice across the front of her neck. On her chest, there were cuts, abrasions, and a stab wound that slightly penetrated the breast bone. On her back, there was an abrasion on the lower part of the shoulder blade and a stab wound that went through the chest wall, through a rib, through a lung, and into the left ventricle of the heart. She had a large number of cuts and abrasions on her arms and hands.
Roberson has never denied killing Anita Wilridge or committing any of the other offenses he was charged with. He contends that his excessive use of crack cocaine on the day of the offenses affected the functioning of his mind.
Roberson testified that he met Wilridge when she moved into the apartment above him. Within a month, he and Wilridge were involved in a volatile sexual relationship. Roberson testified that he had used drugs his entire adult fife, including cocaine, but that he had not smoked crack cocaine until he was introduced to it by one of Wilridge’s friends. After that, he lost his job and apartment because all he wanted to do was use cocaine.
In mid-December 1998, Wilridge was laid off from her employment. Before Christmas she moved in with her octogenarian second cousin, Nannie Cook. Roberson continued to see Wilridge. He moved some of his possessions into Cook’s basement. He stayed three nights in Cook’s basement before moving into a shelter. Then he spent nights at the shelter and most days at Cook’s house with Wilridge. Roberson told Cook that he had to be in the shelter by 6 p.m. and out by 8 a.m.
Sometime during the day of February 21, 1998, Roberson approached Reginald Meeks, who was walking home from the liquor store, and asked for change. Meeks refused and walked on. Roberson followed him. When Meeks turned around, Roberson pulled a knife. Meeks tried to get the knife, the two of them fought, and Roberson stabbed Meeks in the knee. Meeks wrestled the knife away, and Roberson ran away. Meeks denied having any illegal substances with him and denied that Roberson stole crack cocaine from him.
Roberson testified that he bought crack cocaine from Meeks on February 21. After smoking it, Roberson testified, he found Meeks again and tried to snatch his bag of crack; they fought, and Roberson stabbed Meeks in the leg. Roberson testified that he got away with $300 to $400 worth of crack cocaine and smoked it within an hour and a half.
Roberson also was at Cook’s house sometime during the day on February 21, 1998. He left and returned between 5:30 and 6. He asked Cook to let Wilridge take him to the shelter because he was ranning late. Cook did not want to loan her car to Wilridge, but Cook agreed to drive Roberson herself. Wilridge remained at Cook’s house.
Once Roberson and Cook were in her car, he asked her to take him to a vacant house so he could feed his cat. Cook sat in the car for 10 to 15 minutes before Roberson got back in the car. As they drove by a convenience store, he asked her to stop so that he could call the shelter to say he was running late. After that stop, Roberson told her he wanted to take a shortcut. She went where he directed. Roberson hit the gear shift, the car stopped, and Roberson began beating Cook’s head with a brown pipe. She fought back, and Roberson put something around her neck and choked her. Roberson yanked Cook’s seat belt off, shoved her out of the car, and drove away. Cook’s purse and dog were in the back seat of the car. She was hospitalized for several days as a result of the injuries she sustained.
Roberson testified that when he stopped supposedly to feed his cat, he smoked some crack cocaine. Roberson testified that he called the shelter from the convenience store and then had Cook take him to another vacant house where he smoked more crack. According to Roberson, when he got back in the car she asked if he was smoking crack, and he hit her with a hammer that he had gotten in the vacant house. He thought he hit her because the drug “brought out the beast” in him.
A police officer who happened to be in the area drove up behind Cook’s car and saw her being beaten and then thrown from the car. Roberson drove away. Cook was covered in blood, and she stayed on the ground where she had been thrown. The officer called for medical assistance and asked that other police officers be dispatched in the direction Roberson had gone.
Roberson testified that he drove to Cook’s house. When Wilridge saw him with blood all over him, she wanted to know what he had done. He went into Cook’s bedroom trying to find something he could sell to buy more drugs. Wilridge came in with a knife. They argued and shoved, and Wilridge cut Roberson’s hand. He got the knife and stabbed her when she turned to run. He followed, and they continued to fight. When Roberson saw a police car pull up in front of the house, he went out the back door. Wilridge was still alive when he left. He drove to Boonville, Missouri.
At trial, the deposition of Dr. John Wisner, a psychiatrist who examined Roberson, was read. Roberson told Dr. Wisner that he had “a long history of loss of control with relatively — what appears to be minimal provocation.” Dr. Wisner testified that he believed Roberson had some sort of lifelong “impulse control disorder” and was “suffering from cocaine intoxication” when he killed Wilridge. Dr. Wisner did not believe that at the time of the killing Roberson was able “to deliberate in such a fashion as to understand and take action or not take action based on an understanding of consequences.” In addition, Wisner did not “believe [Roberson] would have been able to inhibit any strong drive, whether it be fear or rage or anything else, that might impel assaultive or aggressive behavior towards another person.” He was unable to say whether Roberson’s state was a result of mental defect or cocaine intoxication or a combination of the two. He elaborated:
“Certainly the impulse control disorder might play a role in the phase of escalating cocaine use over a period of time in a binge fashion. I would think the cocaine intoxication a sufficient cause, with or without any sort of underlying predisposition to not have very good control of impulses. In other words, possible impulse control disorder, much more certainly cocaine intoxication.”
We first consider the verdict form and the court’s failure to instruct the jury on the effect of a verdict of not guilty of first-degree murder due to mental disease or defect. The trial court instructed the jury on mental disease or defect with regard to the charged offense of premeditated first-degree murder. PIK Crim. 3d 54.10. The trial court also instructed the jury on voluntary intoxication as a possible defense to the charge of premeditated first-degree murder. PIK Crim. 3d 54.12-A. The verdict form permitted the jury to find defendant not guilty of premeditated first-degree murder. There was not a separate space in the verdict form for a specific finding of not guilty due to mental disease or defect. The verdict form also permitted the jury on the first-degree murder charge to find the defendant guilty of any of four lesser offenses. Defendant’s trial counsel did not object to the verdict form. Nor did he request an instruction on the effect of a verdict of not guilty of first-degree murder due to mental disease or defect or object to the court’s failure to give such an instruction. See PIK Crim. 3d 54.10-A. The jury found Roberson guilty of premeditated first-degree murder.
Without a specific objection before the jury began deliberations, the giving or failing to give an instruction may not be assigned as error unless the instruction or failure to instruct is clearly erroneous. K.S.A. 2000 Supp. 22-3414(3). Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001).
Here, there is almost no possibility that the jury would have rendered a different verdict if it had been instructed as appellant argues and had been given the advocated verdict form. The instruction would have stated:
“If you find the defendant not guilty solely because the defendant, at the time of the alleged crime, was suffering from a mental disease or defect which rendered the defendant incapable of possessing the required criminal intent, then the defendant is committed to the State Security Hospital for safe-keeping and treatment until discharged according to law.” PIK Crim. 3d 54.10-A.
The argument made on appeal is that defendant was prejudiced because the jury, if properly instructed and given the proper verdict form, would have been aware that he would have been hospitalized rather than turned loose upon a determination of not guilty due to mental disease or defect. The advocated verdict form, however, would not have informed the jury that hospitalization would be the result of a not guilty by reason of mental disease or defect determination. See PIK Crim. 3d 68.06. With regard to the instruction, the unstated assumption in appellant’s assertion of prejudice is that the jury believed that Roberson had a mental disease or defect defense to the murder charge but refused to give it effect for fear that doing so would put defendant back on the streets. The evidence, however, would not support a finding that Roberson murdered Wilridge solely because of his mental disease or defect. Defendant’s expert witness, Dr. Wisner, testified that mental disease or defect might possibly have had something to do with Roberson’s attack on Wilridge and that cocaine intoxication certainly did. Wisner’s testimony fell far short of establishing that Roberson killed Wilridge on account of his mental disease or defect. Furthermore, the jury, in spite of being instructed on mental disease or defect and voluntary intoxication, did not credit Dr. Wisner s testimony and determined that defendant was guilty of premeditated murder rather than any of the lesser offenses listed on the verdict form. We are not firmly convinced of a real possibility the jury would have rendered a different verdict with the instruction and verdict form on hospitalization.
Although not argued by the State, there is a more basic reason Roberson’s argument has no merit. Roberson not only failed to object to the verdict form or the instructions, but his counsel specifically stated to the court that he was not raising an insanity defense under K.S.A. 22-3219, but rather lack of premeditation due to excessive use of crack cocaine. He did not request a jury verdict form or instruction for which he now complains was not given to the jury. At oral argument, appellate counsel argued that the State waived Roberson’s failure to file the notice of intent to raise an insanity defense as required under K.S.A. 22-3219. That argument is disingenuous since Roberson never relied on an insanity defense at trial. The State cannot waive that which Roberson failed to raise at trial. In In re Habeas Corpus Petition of Mason, 245 Kan. 111, 775 P.2d 179 (1989), the defendant argued his actions were not premeditated due to alcoholism and blackouts. He also stated he was not relying on an insanity defense. After defendant’s opening statement, the court granted a mistrial because the defendant failed to file a notice of insanity defense as required by K.S.A. 22-3219. We noted that a defendant is required to give notice of an intended defense of alibi, K.S.A. 22-3218, and mental disease or defect, K.S.A. 22-3219. We further noted that insanity and involuntary intoxication are separate defenses and that under the latter, notice is not required. In granting Mason’s writ, we stated:
“To hold that evidence of a temporary mental condition caused by voluntary intoxication requires the defense to plead insanity would be to abolish the distinctions between the two defenses clearly laid out by statute and our cases. No notice of an insanity defense is required where the evidence points only to a temporary mental state negating specific intent caused by the voluntary con sumption of alcohol. The trial court thus erred in declaring a mistrial.” 245 Kan. at 114.
At trial, Roberson did not raise an insanity defense and was not entitled to the jury verdict form or the instruction he now complains on appeal was not given to the jury.
Roberson next claims that it was necessary for the State to give notice of intent to request a hard 40 sentence and, prior to sentencing, to give defendant notice of the aggravating factors on which it would rely in seeking the hard 40 sentence.
Roberson relies on State v. Deavers, 252 Kan. 149, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993), in arguing that his sentence must be vacated because the State gave no notice of intent to request the hard 40. Deavers involved the State’s failure at the time of arraignment to give notice as required by K.S.A. 1991 Supp. 21-4624 of its intent to request a separate sentencing proceeding for determining whether'defendant should be required to serve a mandatory term of 40 years imprisonment. Since that time, the legislature has modified the statutory sentencing scheme for convictions of premeditated first-degree murder. Under the statute applicable to this case,
“if a defendant is convicted of the crime of capital murder and a sentence of death is not imposed, or if a defendant is convicted of murder in the first degree based upon the finding of premeditated murder, the court shall determine whether the defendant shall be required to serve a mandatory term of imprisonment of 40 years or sentenced as otherwise provided by law.” (Emphasis added.) K.S.A. 21-4635(a).
Roberson also complains that the State failed to notify him prior to sentencing of which aggravating circumstances it would rely on. This argument stems from K.S.A. 21-4635(b). It provides that in order for the trial court to make the determination whether defendant should be required to serve a mandatory term of imprisonment of 40 years,
“the court may be presented evidence concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of the aggravating circumstances enumerated in K.S.A. 21-4636 and any mitigating circumstances. Any such evidence which the court deems to have probative value may be received regardless of its admissibility under the rules of evidence, pro vided that the defendant is accorded a fair opportunity to rebut any hearsay statements. Only such evidence of aggravating circumstances as the state has made known to the defendant prior to the sentencing shall be admissible and no evidence secured in violation of the constitution of the United States or of the state of Kansas shall be admissible.” (Emphasis added.) K.S.A. 21-4635(b).
Roberson does not state what evidence was not made known to him prior to sentencing. The trial court based its finding that the murder was committed in an especially heinous, atrocious, and cruel manner on evidence of multiple stab wounds and that the victim was alive during and after the attack. The State contends that there was no need to notify defendant of any evidence because the evidence on which the trial court based the hard 40 sentence was adduced at trial. We agree. Evidence presented by the State at trial is made known to the defendant and is admissible for hard 40 sentencing purposes. We find no merit to Roberson’s argument.
Roberson next complains of the admission into evidence of his diary and his parole status.
The diary. The gist of Roberson’s complaint is that his diary excerpts, which were read aloud to the jury, were irrelevant but highly prejudicial pornographic descriptions of his sexual relations with the murder victim. Defense counsel objected to the diary being admitted into evidence. The trial court ruled that portions of the diary that addressed defendant’s relationship with Wilridge, the murder victim, would be admitted. Maintaining the objection to admissibility, defense counsel worked with the prosecutor, as directed by the trial court judge, to excise irrelevant material from the portion of the diary with entries about Wilridge. The State read the edited diary excerpts aloud at trial.
The portion of the diary read to the jury showed Roberson’s point of view about his relationship with Wilridge. It began when they became neighbors, developed into a sexual relationship, and within a short time became an emotional roller coaster driven by jealousy and contempt. The diary excerpts span the time between May 23, 1998, and February 24, 1999. Wilridge was murdered on February 21,1999. In the last few diary entries, Roberson gave his account of killing Wilridge and wrote about how he felt about her after she was dead.
The State argues that the diary excerpts were admissible to show how Roberson felt toward Wilridge and, thus, show motive and intent. The State likens the diary excerpts to evidence of marital discord, which the court generally allows.
In State v. Thompkins, 271 Kan. 324, 335, 21 P.3d 997 (2001), this court stated:
“Evidence of the events at issue and other events contemporaneous with them between a defendant and a victim are admissible independent of K.S.A. 60-455 if the evidence is to establish the relationship between die parties. State v. Taylor, 234 Kan. 401, 407, 673 P.2d 1140 (1983). The rule in Kansas is that in a case of marital homicide, evidence of a discordant marital relationship and a wife’s fear of her husband’s temper is admissible to show the defendant’s motive and intent. 234 Kan. at 408.”
In State v. Clark, 261 Kan. 460, 470, 931 P.2d 664 (1997), Clark wa$ charged with first-degree murder of his girlfriend. Clark objected to evidence concerning their relationship, and we stated:
“We have addressed the issue of relevance of evidence of a discordant relationship between a defendant and a victim in numerous cases and have held that admission of evidence of a discordant relationship is admissible independent of K.S.A. 60-455 and relevant to show the ongoing relationship between the parties, the existence of a continuing course of conduct, or to corroborate the testimony of witnesses as to the act charged. See State v. Hedger, 248 Kan. 815, 820, 811 P.2d 1170 (1991); State v. Taylor, 234 Kan. at 407; State v. Green, 232 Kan. 116, Syl ¶ 4, 652 P.2d 697 (1982).”
In the present case, Roberson’s diary excerpts showed a discordant sexual relationship and the volatile emotions of the defendant. The lack of a marital bond between the murderer and the victim does not render the evidence inadmissible. Roberson’s diary excerpts were powerful evidence of motive, intent, and the continuing, ongoing relationship between Roberson and Wilridge. The pornographic terms in which Roberson recorded his involvement with Wilridge are an integral part of the relationship between them.
Roberson also contends that K.S.A. 60-447(a) makes the evidence inadmissible. K.S.A. 60-447 governs the use of character traits as proof of conduct. Roberson contends that this statute is applicable because the diaiy excerpts were offered by the State to show that he is a purveyor of degrading pornography. In fact, the diary excerpts showed motive and intent, which arose from the volatile sexual relationship between defendant and the victim. The evidence was admissible.
Parole status. The trial court’s ruling on Roberson’s motion in limine is reflected in a journal entry that states: “The state agrees that it will not mention any evidence which would allow the jury to have knowledge that the defendant had been previously convicted of a crime.” During the State’s questioning, a detective was asked to identify Exhibit 38. The detective responded: “It is a buck knife, and had various pieces of the handle, and it was recovered in his right front pocket from [sic] a parole officer at the time that he was arrested, and I was standing right there when he did, so.” Defense counsel immediately asked to approach the bench and requested a mistrial. The prosecutor explained that the parole officer was working as a member of a felony apprehension unit so that the detective’s reference to a parole officer was not necessarily a reference to Roberson’s parole officer. At the request of defense counsel, the trial court judge admonished the prosecuting attorney to avoid mentioning “any words like parole or probation.”
On appeal, Roberson rejects the prosecutor’s explanation for the detective’s mentioning a parole officer. The prosecutor’s explanation seems plausible, the prosecutor’s question does not seem to have been intended to draw a response about a parole officer, and no other inadvertent references to parole or probation have been reported to this court. We find no merit in Roberson’s argument.
No abuse of discretion has been shown in the trial court’s rulings on these evidentiary matters.
Roberson next argues on appeal that the trial court should not have instructed the jury that it should consider the lesser offenses of premeditated murder only if the jurors did not agree that he was guilty of the charged offense. Roberson concedes that no objection on this subject was raised at trial to the instructions. The appellate court, therefore, reviews the instructions for clear error.
In State v. Trujillo, 225 Kan. 320, 590 P.2d 1027 (1979), the reverse of Roberson’s argument was made. In that case, the trial court instructed the jury on several lesser offenses of the charged offense, but there was no instruction on “which lesser offense was the more serious." 225 Kan. at 324. The court stated that in the interests of promoting an orderly method of considering the possible verdicts, “a trial court should instruct on lesser included offenses in the order of severity beginning with the offense with the most severe penalty.” 225 Kan. at 324. The court concluded that there could have been no prejudice from the free-form instructions because Trujillo was found guilty of the crime charged.
The pattern instructions offer an orderly method of considering possible verdicts. The pattern instructions offer a transitional statement that can be inserted at the beginning of the elements instructions of lesser offenses. For example, in this case the trial court used the pattern instruction transitional statement between the charged offense and the next less serious of the lesser offenses: “If you do not agree that the defendant is guilty of murder in the first degree, you should then consider the lesser included offense of murder in the second degree-intentional.” Then the trial court instructed on the elements of the lesser offense of second-degree intentional murder.
Roberson’s complaint about the approved pattern method of considering possible verdicts is that the jury supposedly cannot consider the lesser offense until after rejecting conviction on the greater offense. In State v. Korbel, 231 Kan. 657, 661, 647 P.2d 1301 (1982), the court rejected a similar challenge to the words “if you cannot agree” when used to preface an instruction on a lesser charge. The court stated that the words
“are not coercive and do not require the members of a jury to unanimously find the accused innocent of the greater charge before proceeding to consider a lesser charge. The words ‘if you cannot agree’ presuppose less than a unanimous decision and no inference arises that an acquittal of the greater charge is required before considering the lesser.” 231 Kan. at 661.
The jury is instructed that the charged offense, in this case first-degree murder, includes lesser offenses. Here the jury was instructed, according to PIK Crim. 3d 68.09, that the charged offense includes lesser offenses and that defendant may be found guilty of the charged offense, a lesser offense, or may be found not guilty. The court instructed the jury: “You may find the defendant guilty of murder in the first degree, murder in the second degree — in tentional, murder in the second degree — unintentional, voluntary manslaughter, involuntary manslaughter or not guilty.” The trial court further instructed the juiy that “[w]hen there is a reasonable doubt as to which of two or more offenses defendant is guilty, he may be convicted of the lesser offense only.” See K.S.A. 21-3109. Taking these instructions together with the elements instructions, the jury was fully and accurately informed that it could consider the lesser offenses, and the jury had an orderly method for doing so.
Roberson also complains about the prosecutor’s comments on this subject in closing argument. The prosecutor told the juiy:
“[Defense counsel] wants you to jump all the way down to voluntary manslaughter. Just disregard first and second degree manslaughter. Well, you can’t get there before you look at first degree murder instruction.
“First you are to consider first degree murder and if you find that the State has proven all of those elements those three elements then you must find him guilty of first degree premeditated murder. Don’t go any further. It veiy well may be that all of the other elements in every other charge have also been established someway throughout the evidence, but if you find that I have proven all of those elements. Those elements of premeditated first degree murder you don’t even look beyond that. The rest of these instructions don’t even get looked at. Voluntary manslaughter isn’t even considered.”
In State v. Pabst, 268 Kan. 501, Syl. ¶ 1, 996 P.2d 321 (2000), the court ruled: “To predicate reversible error on prosecutorial misconduct the error must be of such a magnitude as to deny a defendant’s constitutional right to a fair trial.” Instead of showing the court how the prosecutor’s argument could have denied a fair trial, Roberson assumes the question by simply asserting that prosecutorial misconduct is contrary to a fair trial. The greater part of his argument focuses on the instructions, and he contends that the combined instructions and prosecutor’s closing argument deprived him of a fair trial. The instructions, as already discussed, are consistent with a fair trial. The prosecutor’s remarks go beyond the instructions in telling the jurors not to look at any elements instructions after the premeditated murder instruction, but Roberson has presented nothing from which the court would conclude that he was deprived of a fair trial on account of the closing argument.
Finally, Roberson argues that State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001), was incorrectly decided and asks the court to overrule it and declare the hard 40 sentencing scheme unconstitutional. The basis of his argument is that the court improperly relied on McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986), because the Pennsylvania statute at issue in McMillan and the Kansas hard 40 sentencing scheme are not comparable. Roberson’s argument amounts to a motion for reconsideration of Conley. We deny his motion.
Affirmed.
Davis, J., not participating.
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|
The opinion of the court was delivered by
Six, J.:
This appeal arises out of State Farm Fire & Casualty Company’s (State Farm) denial of coverage on a homeowner’s policy for physical damage sustained to the insured’s home due to vandalism. Coverage was denied by State Farm under a policy exclusion for vandalism losses that occur when a house has remained “vacant” for more than 30 consecutive days. Plaintiff Steven Speth, Executor of the Estate of Gertrude Swesh, alleged that the term “vacant” was ambiguous and that State Farm improperly denied coverage for the insured’s vandalism loss. The district court applied the vandalism exclusion and granted State Farm’s motion for summary judgment.
The question is whether the district court erred in finding that the word “vacant” in the State Farm policy was unambiguous and that the policy exclusion applied.
Our jurisdiction is under K.S.A. 20-3018(c) (transfer on our own motion).
Finding no error, we affirm.
FACTS
The facts were stipulated. The key issue was submitted to the district court on cross-summary judgment motions. Gertrude Swesh’s home was insured by State Farm. In the fall of1998, Swesh was diagnosed with terminal cancer, and in early November 1998, she moved into a nursing care center. She died on May 3, 1999. Steven Speth was appointed the Executor of Swesh’s estate.
On or about September 16, 1999, the Swesh home was vandalized. At the time of the vandalism: (1) an alarm system was in place and operable, but had been turned off so that the home could be shown by realtors, (2) the home was empty of all contents except a stove and a refrigerator for more than 30 consecutive days, and (3) the home was serviced by water, gas, and electric utilities.
Speth filed a vandalism loss claim with State Farm. State Farm, relying on the exclusion, denied coverage. The homeowner’s policy excluded coverage for vandalism losses when a house has been “vacant” for more than 30 consecutive days. The policy did not contain a definition of “vacant.”
The district court found that the term “vacant” was not ambiguous. It also found that “the Swesh house was not occupied for substantially all the purposes of a dwelling place” and concluded that the house was vacant as that term is understood in its plain and ordinary usage. Thus, the vandalism claim was excluded from coverage because the home had been vacant for more than 30 consecutive days before the vandalism occurred.
DISCUSSION
The resolution of this case presents a question of law requiring our interpretation of the State Farm policy. See Harris v. Richards, 254 Kan. 549, 552, 867 P.2d 325 (1994). Speth, as executor, argues that the district court erred by finding, as a matter of law, the term “vacant” was unambiguous and that the policy exclusion applied to the vandalism loss. We disagree.
The burden of proving the application of the exclusionary clause falls upon State Farm. Central Security Mut. Ins. Co. v. DePinto, 235 Kan. 331, 335, 681 P.2d 15 (1984). Here, the exclusionary clause said, in pertinent part:
“1. We do not insure for any loss to the property described in Coverage A which consists of, or is directly and immediately caused by, one or more of the perils listed in items a. through n. below, regardless of whether the loss occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of these:
e. vandalism or malicious mischief or breakage of glass and safety glazing materials if the dwelling has been vacant for more than 30 consecutive days immediately before the loss. A dwelling being constructed is not considered vacant.” (Emphasis added.)
Speth contends that the term “vacant” is ambiguous because it was not defined in the policy. However, under Kansas law, “the fact that an insurance policy does not define each term within it does not somehow make an undefined term ambiguous; ambiguity arises only if [the] language at issue is subject to two or more reasonable interpretations and its proper meaning is uncertain.” Harman v. Safeco Ins. Co. of America, 24 Kan. App. 2d 810, 816, 954 P.2d 7 (1998). Thus, the absence of a definition does not necessarily render the word “vacant” ambiguous.
State Farm advanced the opinion of Daniel J. Sevart, a Wichita attorney, on the meaning of “vacant.” Without support, Speth argues that Sevart’s report shows that the policy was ambiguous. The Sevart report said, in part:
“The policy provides no definition of Vacant,’ and thus we look to the common definition of the term. Webster’s New Collegiate Dictionary, at p. 1290 (G. & C. Merriam Company, 1977), defines ‘vacant,’ so far as pertinent here, ‘as being without content or occupant,’ and refers to the term ‘ABANDONED’ in reference to ‘a [vacant] estate,’ and for synonym states ‘see EMPTY.’ Thus, from the common dictionary definition, it is clear that a house which remains furnished, although unoccupied by a living person, is not ‘vacant.’... We accordingly have no difficulty in concluding that the house in question became ‘vacant’ when the furniture was removed in July of 1999, and not when Ms. Swesh was moved to the Masonic Home.”
Although the district court expressed concern from its review of the Sevart report, it found that there was no evidence that the property was “forlorn” or “abandoned”; rather, it found that the house was being cared for by the executor to the extent that it had utilities and was available for real estate agents to show.
Speth turns to Kansas case law to advance his contention that Kansas courts have applied various meanings to the term “vacant.” We disagree with the “ambiguity” conclusion Speth reaches from a reading of our cases.
We next take up a review of those cases. In Robinson v. Insurance Co., 91 Kan. 850, 139 Pac. 420 (1914), a fire insurance policy contained a provision that excluded coverage if the insured building became and remained “vacant” for 30 days, unless notice was given and a vacancy permit was issued. We applied the reasoning that the policy contemplated “the protection of a guardian of the premises, some individual in charge of them who would exercise a preserving superintendency over them.” 91 Kan. at 854. The subject properties in Robinson, a dwelling house and a bam, contained a pile of clothing, a sofa, a baby carriage, a stove, two beds without mattresses, some feed, and one or more horses. We found that the house and bam were not vacant. The policyholder satisfied the purpose of the vacancy exclusion because he occupied the premises “for substantially all the purposes of a dwelling place except that sleeping there at night was deferred and meals were eaten there only occasionally.” 91 Kan. at 855.
In Insurance Co. v. Johnson, 69 Kan. 146, 76 Pac. 419 (1904), an insurance policy against loss by fire, lightning, tomado, and windstorm covered a dwelling house, a double corncrib with a stable addition, and hay and grain. The policy contained a provision that it would become void “if the above-mentioned premises . . . become vacant for thirty days.” 69 Kan. at 147. At the date of the policy, the house was occupied as a dwelling by a tenant of the land. Later, the tenant moved away, and the owner farmed the land from his own residence on an adjoining tract. During that time, the double comcrib was used to house unused farming implements. More than 30 days after the removal of the tenant from the house, a windstorm destroyed the double corncrib.
In determining whether the premises were vacant within the meaning of the insurance provision, this court quoted from Moore v. Insurance Co., 64 N.H. 140, 142, 6 A. 27 (1886):
“ The meaning of the words “vacant and unoccupied,” as used in the contract of insurance, is that which the parties intended to give them; and that intention is to be found from the whole instrument, the subject-matter of the contract, and the situation of the property insured. The object of die stipulation against vacancy and non-occupancy was to guard against the increased risk which arises from the absence of everybody whose duty or interest might afford some protection.’ ” 69 Kan. at 151.
Speth also cites Estes v. St. Paul Fire & Marine Ins. Co., 45 F. Supp. 2d 1227 (D. Kan. 1999). In Estes, Judge Vratil found a house to be “vacant” for purposes of a homeowner’s policy exclusion for vandalism. The house in question was referred to in the policy as rental property. The City of Kansas City, Kansas notified the owner that the house was unfit for human habitation, and the owner notified the tenants that they had to move.
The house was unoccupied for about 7 months. During that period, the owner attempted to complete the repairs demanded by the City. Then, the house was vandalized. The repair work was not complete at the time. The insurance company denied coverage, relying on a policy exclusion that said that vandalism and glass breakage was covered “as long as you haven’t left [the house] vacant for thirty days or more.” 45 F. Supp. 2d at 1229. Estes found no ambiguity in the disputed policy terms, commenting: “In the context of a dwelling and an insurance policy exclusion for vandalism, the plain and ordinary meaning of Vacant’ is that the structure is not lived in and lacks the basic amenities for human habitation.” 45 F. Supp. 2d at 1230 (citing Webster’s Third New Int’l Dictionary [1986] at 2527 [“ Vacant’ in context of dwelling is premises which are not lived in and from which the furniture and fixtures have been removed’ ”]). Estes concluded that a reasonably prudent policyholder would have understood the term “vacant” in light of the surrounding vandalism exclusion, “which clearly ad dressed the increased risk of vandalism in dwellings that were unoccupied” or not otherwise protected. 45 F. Supp. 2d at 1230. We agree with the Estes analysis. See Brumley v. Lee, 265 Kan. 810, 813, 963 P.2d 1224 (1998), where we stated that the test for ambiguity in an insurance policy is what a reasonably prudent insured would understand the language to mean, not what the insurer intends the language to mean; Associated Wholesale Grocers, Inc., v. Americold Corp., 261 Kan. 806, Syl. ¶ 2, 934 P.2d 65 (1997).
Other jurisdictions have addressed issues involving similar exclusionary provisions containing the term “vacant.” See Jelin v. Home Ins. Co., 5 F. Supp. 908, 909 (D. N.J.), aff'd 72 F.2d 326 (3d Cir. 1934) (“a vacant house is one empty of human beings”); Kent v. Farm Bur. Mut. Ins. Co., 127 Idaho 776, 779, 906 P.2d 146 (1995) (finding that “[t]he house was vacant, according to the plain meaning of that term, when the pipe froze”); Thompson v. Green Garden Mutual Ins. Co., 261 Ill. App. 3d 286, 291, 633 N.E.2d 1327 (1994) (“The term ‘vacant’ has been defined as meaning generally empty or deprived of contents.”); Rainwater v. Maryland Cas. Co. of Baltimore, 252 S.C. 370, 374-75, 166 S.E. 2d 546 (1969) (finding that the actual use of building outside of the vacancy or unoccupancy exclusion of a fire policy was established by showing that the building had not been deprived of the contents or abandoned and that there was no absence of human beings); Jerry v. Kentucky Cent. Ins. Co., 836 S.W. 2d 812, 815 (Tex. App. 1992) (“The term ‘vacant’ means entire abandonment, deprived of contents, empty, that is, without contents of substantial utility.”). But see Rumpza v. Donalar Enterprises, Inc., 581 N.W. 2d 517, 520-21 (S.D. 1998) (finding exclusionary provision was ambiguous where the policy did not provide a method for determining vacancy or reveal how an insured seeking coverage would know he was paying premiums for vacant property); Smith v. Lumbermen’s Mut. Ins. & Co., 101 Mich. App. 78, 82-83, 86, 300 N.W. 2d 457 (1980) (finding policy provision was ambiguous and that the house being sold on a land contract was not “vacant or unoccupied” where the seller had moved out and the buyers were to take possession).
Here, the Swesh house was not lived in and lacked furniture and other amenities for human habitation. There is no question that the house was not occupied for substantially all the purposes of a dwelling place. As the district court found, there was no evidence that anyone regularly visited the house or that the executor conducted on-site supervision of the premises. A reasonable person walking up to the house and looking through a window would conclude that it was “vacant” as that term is understood in its plain and ordinary usage.
The district court correctly found that the term “vacant” was not ambiguous and that Speth’s claim as executor was excluded from coverage under the policy’s exclusionary clause.
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The opinion of the court was delivered by
Larson, J.:
This is Craig M. Bryant’s direct appeal from three convictions of first-degree felony murder. The sole issue raised relates to testimony by the former wife of Bryant’s co-conspirator, who incriminated Bryant in the crimes.
This is a companion case to State v. Pink, 270 Kan. 728, 20 P.3d 31 (2001). Both Malcolm T. Pink, Bryant’s half brother, and Bryant admitted in statements to law enforcement officers to being involved in the robbery and shooting of three males in Wichita. But, each pointed to the other as being the shooter and each contended he had no idea a robbery was to take place or that anyone would be killed.
On January 11, 1994, law enforcement officers responded to a shooting call at a residence in Wichita and found three males fatally wounded from gun shots. Erik Carter was shot three times in the head, with two of the shots being contact wounds where the barrel of the gun was touching the head. Travis Wooten was shot six times in the head, three of the shots being from a distance and the others being contact wounds. Jimmy Fox was shot three times in the head, with one contact wound. Upon testing, all of the bullets recovered were shown to be from the same .25 caliber handgun.
The killings were unsolved for 4 years, but in the spring of 1998, additional leads were developed and officers interviewed both Bryant and Pink. After being informed of and waiving his Miranda rights, Bryant told Wichita Police Detective Paul O’Mara and FBI Special Agent Charles Prichett the following story.
Bryant and Pink were at Pink’s house in Arkansas City, when they decided to go to Wichita because Pink needed some “fast money.” Bryant gave Pink a ride to Wichita, with Pink directing him where to go. Pink told Bryant to park a block and a half away from the house they were going to. Bryant did so and the two walked back to their destination. According to Bryant, the occupants of the house would not let him in until they saw Pink, and at that point both were permitted entry. They were shortly thereafter asked to leave by the occupants because someone was coming by to either count or pick up some money. Pink then pulled out a .25 caliber pistol and told everyone to get on the floor, that a robbery was being performed. Without provocation, according to Bryant, Pink began shooting people in the head. As the two were leaving from the back door, Bryant stated Pink took a gun and a brown paper bag containing money and marijuana. Bryant then drove Pink back to Arkansas City. Sometime during the drive, Pink offered to give some of the money and marijuana to Bryant. Bryant stated that he refused, but he did take $20 for gas. Bryant admitted that the two smoked “some joints” on the way back to Arkansas City.
Seven days later, Bryant was interviewed a second time. He again waived his Miranda rights and allowed the interview to be tape recorded. The two accounts were similar, but some facts were changed or added. Bryant stated that prior to entering Wichita, Pink had discussed robbing someone. He admitted that he felt Pink was going to rob someone and that Pink did have a gun. He stated that he saw Pink reload once or twice during the time he was shooting the victims. He further admitted that the brown sack contained from $1,000 to $1,500 in cash. He claimed Pink had driven him away from the Wichita location. He also stated that Pink had said, although it is not clear if this statement was made before or after the killings, that dead people cannot testify as witnesses.
Bryant was interviewed the following day for the third and final time. He again waived his Miranda rights and again admitted to additional or changed facts. In his statement, he admitted he knew that Pink was asking him for assistance in an illegal act. He stated that while en route to Wichita, Pink test-fired a .25 caliber pistol out the window of Bryant’s car. Bryant could not remember whether he himself had a gun when the two entered the Wichita home, but Bryant remembered not shooting any weapon while in the house.
Bryant was charged with three counts of first-degree murder. At his trial, Gale Pink, the former wife of Malcolm Pink, testified on behalf of the State. She stated that on the night in question, Bryant came and picked up Pink from Pink’s house. She said that Bryant asked Pink to go somewhere, and the two left in Bryant’s car. Two hours later, the two returned and Pink was emotionally upset and crying. She noted that she had only seen Pink cry one time in the 9 years they had been married. While in another room, she overheard Pink ask Bryant, “Why did you [Bryant] kill those guys?” She said she did not hear Bryant’s response but believed they stopped talking because they noticed her listening. She testified that as she was letting Biyant out the door, he gave her a brown paper bag containing $400 and told her to give the bag to Pink. The next morning, she found another bag on the porch with a handgun in it. She eventually spent the money and threw the gun away. On cross-examination, she stated that Pink told her to not accept the bag of money Biyant had offered her.
The State presented essentially the same case against Pink as it did against Bryant. The trial court refused the State’s motion to compel Pink to testify against Biyant, finding that Pink still retained his Fifth Amendment privilege against self-incrimination because his case was on appeal.
The jury convicted Biyant of three counts of first-degree murder on the theory of premeditated, rather than felony, murder. He was sentenced to three consecutive fife terms.
Bryant’s appeal is centered on the contention that the trial court committed reversible error by admitting a statement from Malcolm Pink, through the hearsay testimony of Gale Pink, in which Pink asked Bryant why he killed the victims. Bryant contends that it was error for the trial court to permit the evidence in under the res gestae exception to the hearsay rules. He argues the statement did not constitute res gestae, and even if it did, the rule should be abrogated by the court. He also argues that the hearsay testimony violated his constitutional rights of confrontation under the Sixth Amendment to the United States Constitution.
Prior to the examination of Gale Pink, a hearing was held in which defense counsel challenged the potential statement of Malcolm Pink by an oral motion in limine. Counsel argued that Malcolm Pink’s unavailability for cross-examination made his statement inadmissable hearsay. Anticipating the counter argument of the State, defense counsel recognized that Malcolm Pink’s statement would fall under the recent perception exception of hearsay statements, but contended that Gale Pink’s statement as to what Mai colm Pink may or may not have said would be too unreliable to meet the criteria for a hearsay exception.
The trial court refused to either grant or deny counsel’s motion in limine, noting it was unclear as to what Gale Pink’s testimony might be. The court told counsel that a contemporaneous objection would be required and that “we’ll cross that bridge when we get to it.”
During the examination of Gale Pink, as the prosecution was questioning her about statements she might have overheard between Pink and Bryant, defense counsel lodged the following objection: “Objection, Your Honor; hearsay as previously brought up.” The judge responded, “I’ll overrule the objection on the res gestae exception.”
This court has long held, and the rule has been embodied in K.S.A. 60-404, that a “ Verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.’ ” State v. Deiterman, 271 Kan. 975, 984, 29 P.3d 411 (2001). Additionally, we have held in many cases that “constitutional grounds asserted for the first time on appeal are not properly before the appellate court to review.” State v. Sims, 262 Kan. 165, 173, 936 P.2d 779 (1997). Moreover, a defendant may not object to the introduction of evidence on one ground at trial, and then assert a different objection on appeal. State v. Toney, 253 Kan. 651, 656, 862 P.2d 350 (1993).
The rules above-stated preclude Bryant’s argument on appeal based upon a violation of die Confrontation Clause; however, we will consider his argument that the evidence was erroneously admitted under the res gestae exception.
This is not the time nor is it necessary for us to rehash the application of res gestae and the hearsay rule, see State v. Edwards, 264 Kan. 177, 203, 955 P.2d 1276 (1998); State v. Clark, 261 Kan. 460, 470-71, 931 P.2d 664 (1997); Prater & Kleemee, Res Gestae Raises Its Ugly Head, 65 J.K.B.A. 24 (Oct. 1996). Although Gale Pink’s testimony was clearly not admissible under the “res gestae” exception, it was nonetheless admissible under the excited utter anee exception, to which the defense counsel made reference at the time of trial.
The correct statutory provision under which Gale Pink’s testimony was admissible is K.S.A. 60-460(d)(2), which states:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
“(d) Contemporaneous statements and statements admissible on ground of necessity generally. A statement which the judge finds was made ... (2) while the declarant was under the stress of a nervous excitement caused by such perception.”
An appellate court may uphold the decision of the trial court on grounds alternate to those relied on at the trial level. State v. Mincey, 265 Kan. 257, 267, 963 P.2d 403 (1998). The “excited utterance” exception under K.S.A. 60-460(d)(2) allows a hearsay statement to be introduced to prove the truth of the matter when the statement was made under the stress of nervous excitement caused by such perception. Such are the facts in this case because of the emotional state of Malcolm Pink and the close time frame to the triple homicide. The requirements that the event or condition occurred, that it was sufficiently “startling” to show that the declarant perceived it, and the declarant made the statement while under stress of nervous excitement were recognized in State v. Rowe, 252 Kan. 243, 250, 843 P.2d 714 (1992). See Barbara, Kansas Rules of Evidence with Evidentiary Objections and Evidentiary Foundations, § 7.6 (3d ed. 1993).
While the trial court made no specific finding as to reliability, we recently held in State v. Deal, 271 Kan. 483, 23 P.3d 840 (2001), that reliability can be inferred when the evidence falls within a firmly rooted hearsay exception. Justice Abbott, in a unanimous opinion as to this issue, went on in Deal to state:
“The excited utterance exception is a firmly rooted hearsay exception. See Conner v. State, 748 So.2d 950, 956 (Fla. 1999) (excited utterance is one of several firmly rooted hearsay exceptions); State v. Castaneda, 621 N.W.2d 435, 445 (Iowa 2001) (excited utterance is one of several firmly rooted hearsay exception); State v. Gates, 615 N.W. 2d 331, 336-37 (Minn. 2000) (excited utterance is firmly rooted hearsay exception satisfying constitutional requirements); State v. Salgado, 126 N.M. 691, 696, 974 P.2d 661 (1999) (excited utterance is ‘uniformly considered’ a firmly rooted hearsay exception and comports to Confrontation Clause requirements); State v. Dennis, 337 S.C. 275, 286-87, 523 S.E. 2d 173 (1999) (excited utterance exception has been used and approved for over 200 years and is a firmly rooted hearsay exception). Firmly rooted hearsay exceptions are ‘so trustworthy that adversarial testing can be expected to add litde to its reliability.’ White v. Illinois, 502 U.S. 346, 357, 116 L. Ed. 2d 848, 112 S. Ct. 736 (1992). Reliability is, therefore, inferred without any further showing.” 271 Kan. at 500-01.
However, under certain circumstances where reliability was not found to exist by the trial court such evidence may be excluded. See State v. Broyles, 272 Kan. 823, 840, 36 P.3d 259 (2001); State v. Hobson, 234 Kan. 133, 158-59, 671 P.2d 1365 (1983).
The trial court properly admitted this testimony, although the reason stated was improper. But, as we have often stated the trial court will not be reversed if it is right, albeit for the wrong reason. See State v. Jones, 267 Kan. 627, 634, 984 P.2d 132 (1999).
Based on the facts in this case, the testimony in issue was not erroneously admitted. The three convictions are affirmed.
Davis, J., not participating.
Brazil, Chief Judge Retired, assigned. | [
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|
The opinion of the court was delivered by
Abbott, J.:
The Kansas Department of Revenue (Department) appeals the Board of Tax Appeals’ (BOTA) final order finding that Panhandle Eastern Pipe Line Co. (Panhandle) and National Helium Corp. (Helium) were a unitary business under K.S.A. 79-32,141. At stake in this appeal is a corporate tax refund, including interest, of approximately $26 million. The Department appealed pursuant to K.S.A. 2000 Supp. 74-2426 and K.S.A. 77-621. The matter is before this court pursuant to a K.S.A. 20-3018(c) transfer.
The Department attempts to insert the red herring issue of whether its bright line test is rationally related to the controlling statute for unitary businesses, K.S.A. 79-32,141. The bright fine test is that before the Department will consider whether two or more businesses are operating as a unitary business, one entity must show it owns more than 50% of the other entity. This rule is not reflected in the language of the Kansas statutes, case law, or even in the Department’s published regulations. The issue is a red herring because (1) the bright fine test is only a rule of thumb used by auditors, not a published regulation or policy; (2) the test may not have been in use during the time period in question; and (3) BOTA’s standard of review of the Department’s decision was de novo, not a mere rationality review. As the paramount tax agency in the state of Kansas, BOTA need not defer to the Department’s findings or an unpublished bright line test (with no basis in the Kansas statutes or case law). While the Department argues that BOTA should have deferred to its bright line rule, BOTA did not address this issue or make any findings in regard to its validity.
On July 22, 1986, Panhandle and Helium requested permission from the Department to amend corporate tax returns and to file a combined report as a unitary business for tax years 1981-1984. On September 10, 1987, the Department denied Panhandle’s request to file a combined return including Helium, rejected its amended returns, and denied Panhandle’s refund claim. The Department’s position was that 50 percent ownership of Helium by Panhandle was insufficient for a unitary business determination for the purpose of combined reporting. Thereafter, Helium requested a hearing on the matter.
A prehearing conference was conducted on February 21, 1994, before Alisa M. Dotson. Three days later, Dotson issued an order directing the Department to file a motion for summary judgment. On December 15,1994, Dotson authored an order granting in part and denying in part the Department’s motion for summary judgment. Dotson concluded that (1) the Department failed to establish that more than 50 percent ownership of a corporation’s voting stock was required as a matter of law to make a unitary business determination; (2) that an issue of fact remained as to whether Helium was unitary with Panhandle; and (3) that Panhandle should be allowed to present arguments at an evidentiary hearing.
The Department moved to vacate Dotson’s order, however. On October 3, 1995, the acting Secretary of Revenue, Karla J. Pierce, vacated the order to the extent that it purported “to define controlling Kansas law regarding the ownership requirement for combined reporting.” Pierce noted that Dotson’s order “failed to give due consideration to whether the department’s standard of requiring more than 50 percent ownership was reasonable,” and “con- eluded the order should be vacated in its entirety and that the matter should proceed to formal hearing on all issues of fact and law.”
At an informal conference on February 11, 1998, Panhandle presented witness testimony. On September 4,1998, Pierce issued her final determination finding that, as a matter of law, Panhandle and Helium could not be unitary “because Panhandle’s ownership of Helium [was] not more than 50%.” In short, Pierce ruled that without ownership of more than 50 percent of the stock of Helium, Panhandle could not establish, as a matter of law, the right to file a combined return; hence, there was no necessity to look into the facts.
Pursuant to K.S.A. 2000 Supp. 74-2438, Panhandle filed an appeal with BOTA on September 22, 1998. BOTA conducted a 3-day trial on September 15 through 17, 1999.
Kenneth Kalen, who had served in the capacity of vice president, president, and chief operating officer of Panhandle, and vice chairman of the board of Helium, testified at the BOTA hearing regarding the history and interrelationship of Panhandle and Helium.
Kalen stated that Panhandle began as a small intrastate gas system in eastern Kansas around 1930, but developed into one of the larger gas transmission companies, serving customers in Kansas, Missouri, Illinois, Indiana, Ohio, Michigan, and Canada. Panhandle owned extensive gathering systems in western Kansas, Oklahoma, and Texas, which company officials refer to as the “West End” gathering systems. Kalen explained that these systems converge at Liberal, Kansas, where the mainline compressor station compresses the gas which is sent east through the pipeline to Panhandle customers. Following the passage of the Helium Act Amendments of 1960, see 50 U.S.C. § 167 et seq. (1994), Kalen said representatives from the federal government contacted Panhandle to encourage the company to build a facility to extract helium from gas taken from the Hugoton Gas Field. According to Kalen, Panhandle discussed the possibility of constructing a helium extraction facility with its “sister” corporation, National Distillers and Chemical Corporation (Distillers).
Stanley Wilbers, who worked as senior auditor and accountant for Panhandle and later became the vice president/treasurer and controller of Helium in 1976, testified that Helium was formed in 1960. Wilbers testified that “Helium agreed to supply helium to the United States government in the amount of $15,200,000 a year and, based on the initial contract price of eleven seventy-eight an Mc.f., the quantity amounted to 1.3 billion cubic feet of helium.”
Kalen noted that Panhandle’s chief executive officer and the chief executive officer of Distillers served on each other’s board of directors. James Crozier, who served as a vice president and general manager for a division of Distillers called UFI, as well as on Helium’s board of directors, testified at the hearing that Panhandle owned at least 9 percent of Distiller’s outstanding shares and was its single largest stockholder from 1981 to 1984.
Kalen stated that top level managers of Panhandle and Distillers agreed to build the helium plant as a joint project and worked together during the development and construction of the facility. Each company invested equity investments of $2.6 million (520 shares each) in Helium, and the balance of the $25 million cost was financed with five different banks by Panhandle’s financial personnel. The helium extraction facility was constructed on land purchased by Helium from Panhandle, adjacent to Panhandle’s compressor station. During construction, Panhandle provided on-site project engineers at its own expense.
Although Helium had legal title to the facilities and retained control over hiring and firing employees, Panhandle owned 50 percent of its stock and Distillers owned 50 percent. Panhandle and Distillers agreed to restrict the sale of stock, and there was a letter agreement to a first right of refusal between the parties.
According to Kalen, because Panhandle’s entire gas stream coming into the Liberal compressor station would be processed by Helium, Panhandle had a vested interest in protecting the integrity of its pipeline system. During contract negotiations between Panhandle, Distillers, and Helium, Panhandle inserted clauses in the contract giving it the right to approve the design of piping in and out of the helium plant and to review maintenance procedures. Panhandle retained the right to “inspect the plant from time to time for the purpose of satisfying itself as to the adequacy of operation and maintenance.”
Initially, 5 of the 10 officers of Helium were chosen from Panhandle’s staff, and the vice president of transmission with Panhandle, F J. McElhatton, was named president of Helium. The chairman of Panhandle, William Maguire, became chairman of Helium, and Panhandle’s general counsel also served as general counsel for Helium. During the 1981 to 1984 period, Helium had 10 officers;' 5 from Panhandle, 3 from Helium, and 2 from Distillers.
Panhandle employees were given an opportunity to go to work for Helium at its inception. Helium employees enjoyed the same benefit package as Panhandle employees and Helium employees belonged to Panhandle’s employees’ credit union. When a job came up for bid at either Panhandle or Helium, the employees of both compames were given the opportunity to bid on it. No employees from Distillers transferred to Helium after its incorporation, however.
Wilbers and Kalen both testified that the president of Helium reported directly to Kalen, then president of Panhandle. Panhandle furnished Helium with daily forecasts of its gas volumes so Helium could adjust its operations to accommodate the expected volumes. Crozier’s testimony confirmed that Panhandle exercised control over the day-to-day operations of Helium. By contrast, Wilbers and Kalen testified that Distillers was not active in the day-to-day operations of Helium, and only met annually with Helium to review budgets and declare dividends.
Kalen agreed that the operations of Panhandle and Helium were functionally integrated and centrally managed by Panhandle so it could maintain the integrity of its pipeline system. Moreover, he acceded that the Panhandle-Helium operating relationship could be characterized as different steps in a large vertically structured enterprise.
For example, Panhandle was the sole supplier of natural gas to Helium. The consumption requirements of Panhandle’s customers dictated what gas would be available for processing at Helium. In addition, Panhandle was Helium’s sole source of legal, tax planning, and preparation services and helped with Helium’s employee stock option plan. Helium did pay Panhandle a service fee of a quarter of a million dollars a year for those services. As Helium processed the gas, certain ancillary products such as butane and propane were produced and captured. Century Refining Company, a wholly owned subsidiary of Panhandle, was primarily responsible for marketing the butane arid propane for Helium.
According to Kalen, the operations of Helium were intertwined with Panhandle because it was “absolutely necessary that the helium plant compressors continued to function, as our own compressors function every day, ever hour; and it just was an integral part of the total operations.” In addition, “the helium plant was in effect preparing the gas for quality control to meet [Panhandle’s] mainline tariff specifications . . . [by removing] the water content and hydrocarbon content . . . .”
In addition, the emergency shutdown systems of the two companies were tested at the same time because each operation was dependent on the other. Panhandle performed engineering studies for Helium and provided welders and other workers when needed. Laboratoiy services were provided to Helium by Century Refining. Helium management had full use of Panhandle’s airplanes and travel services department. The Panhandle employee newsletters included information concerning notices of employee transfers, retirements, deaths, service awards, and other announcements at Helium.
Wilbers noted that there was an ongoing exchange of Helium employees to Panhandle and its subsidiary, Anadarko. When Panhandle built its plant in Lake Charles, Louisiana, to process liquefied natural gas, an electrician, maintenance supervisor, and two operators were transferred there from Helium. According to Wilbers, all employee benefits, retirement privileges, and vacation time were also transferred.
Kalen stated that after about 10 years, the government prema- . turely canceled its contract for the purchase of helium. In 1997, Distillers ultimately divested itself of its Helium stock by selling it to Panhandle.
At the BOTA hearing, Panhandle presented testimony of expert witnesses J. Thomas Johnson, Walter Hellerstein, J.D., Richard D. Pomp, and Dr. Richard E. Olson.
Johnson, a partner in charge of state and local tax practice for the Chicago firm of KPMG, LLP, formerly served as Illinois Director of Revenue. Johnson testified that the purpose for the language in K.S.A. 79-32,141 “owned or controlled directly or indirectly by the same interests,” is to
“really look at how did the ownership really exist, because if you didn’t include ‘indirect,’ there would be all kinds of opportunity to avoid the ownership attribution. The reason why you have both ‘direct and indirect’ in most state laws is so that a taxpayer would not be able to manipulate the facts to avoid the consequences of the ownership and control that really exists economically . . . .”
Furthermore, Johnson stated:
“I don’t think there is a threshold requirement of ownership in the statute. It says controlled or owned, as I understand, so, I mean, you could have a situation where there is no or a very small percentage, ownership and if you controlled the company through debt instrument or some other way you would still meet that test.”
Johnson then testified that, in light of his experience as tax commissioner, “there’s no question that the unitary relationship existed, not only for the audit period, but, in all likelihood, probably existed far before that audit period . . . .”
Hellerstein, a University of Georgia law professor and author of a well-recognized treatise on state taxation, testified “in my judgment, this is just a very easy case on the question of whether or not these two entities are unitary.” Hellerstein said:
“[A]s a matter of substance, you have a single operational enterprise here from, I’m going to say, the wellhead to the gas pump. Here, you have the gas flowing, so you can actually watch the product flow back and forth and the essentialness of one company’s operation to the other.
“Obviously, Helium couldn’t extract liquids unless they got the gas, and they got the gas from Panhandle; and Panhandle couldn’t have sold the gas unless they had the liquid removed; and that’s what Helium did.
“So you couldn’t ask for more operational interdependence. Dependency and contribution, flow of value, flow of goods, whatever your test is, it’s met here.”
In addition, Hellerstein stated that although the Secretary of Revenue was given the discretion to define “ownership or control” under K.S.A. 79-32,141, “clearly the Secretary does not have the discretion to issue a regulation inconsistent with the statutory man date.” Hellerstein’s expert report concluded: “[T]he evidence is clear that ‘the actual exercise of control’ [of Helium] rested with Panhandle.”
Pomp, a University of Connecticut Law School professor and visiting Harvard law professor in the area of federal, state, and local corporate income taxation, testified that, in essence, the Panhandle-Helium relationship was a vertically integrated operation. According to Pomp, “a vertically integrated manufacturing activity is the quintessential of a unitary business for which a combined report is.needed.”
Pomp noted that the wording of K.S.A. 79-32,141 parallels language found in 26 U.S.C. § 482 (1994) allowing the Internal Revenue Service (IRS) Commissioner “to distribute, apportion or allocate gross income, deductions, credits, or allowances between businesses . . . ’owned or controlled, directly or indirectly, by the same interests’ ” (Emphasis added.) An IRS/Treasury regulation defines “controlled” for 26 U.S.C. § 482 to mean: “ ‘any kind of control, direct or indirect, whether legally enforceable or not, and however exercisable or exercised, including control resulting from the actions of two or more taxpayers acting in concert or with a common goal or purpose. It is the reality of the control that is decisive, not its form or the mode of its exercise.’ ” See 26 C.F.R. § 1.482-l(i)(4), p. 538 (2001). Pomp further related to the hearing panel that federal case law interpreting 26 U.S.C. § 482 had relaxed the requirement of majority stock ownership. Quoting an unidentified commentator, Pomp read a footnote discussing 26 U.S.C. § 482 cases: “ "While, in some early cases, the courts were reluctant to find control of a corporation absent actual ownership of a majority stock interest, this position has long since been overruled.’ ”
Olson, a professor and former Dean of Washburn University School of Business, noted that under securities law, more specifically the Williams Act, 15 U.S.C. § 78m(g) (2000), the threshold percentage of stock ownership that could demonstrate control of a corporate entity is 5 percent. Therefore, Olson agreed that the 9 percent interest Panhandle had in Distillers would be considered significant, requiring Panhandle to file reports with the Security and Exchange Commission.
Olson testified that in his opinion, in economic terms, the United States Supreme Court’s and the Kansas Supreme Court’s dependency/contribution test meant that companies were unitary “if they are essentially interwoven or intertwined, [and could not] operate very well independently, or could not operate well without each other.” Olson stated the two companies were completelyintegrated functionally. He concluded that “Panhandle treated Helium as pretty much as a company of its own . . . and they did control the day-to-day operation.”
At die hearing, other witnesses were questioned as to whether the Secretary of Revenue had disseminated an agency definition of “ownership or control” under K.S.A. 79-32,141 to mean more than 50 percent direct control during the 1981-1984 reporting period.
Alan Corey, who worked for the Department as a revenue audit manager from September 1979 to March 1992, testified on behalf of the Department. Corey confirmed that audit managers and members of the Legal Services Bureau at the Department had discussed the facts of this case. Corey said the discussion dealt with whether 50 percent ownership was sufficient, and he stated he did not believe there necessarily was a clear policy established for 50 percent ownership at that time.
Earl Agent, a corporate auditor for the Department since the fall of 1986 or 1987, testified on behalf of the Department that from the time he began his initial training, the policy for combined reporting was that there had to be “ ‘more than 50 percent’ ownership.” He admitted on cross-examination, however, that he did not have anything in writing confirming that policy, and stated, “That has been my interpretations [sic] from the instructions that I have been given since I started with the department, doing corporate income taxes.”
Carol Ireland also testified on behalf of the Department. Ireland said she had worked for the Department since June 1, 1978, and since 1987 had worked in the capacity of an audit manager. She did not recall any time approving combined reporting for entities who owned 50 percent or less of another entity, and that her understanding of this policy came from training out in the field. On cross-examination, Ireland confirmed that taxpayer’s Exhibit 22 appeared to be the official policy of the Department at the time.
Karen Warner, C.P.A., testified on behalf of Panhandle that Department policies given to her in early 1986 during her training as a corporate income tax auditor contained a specific provision concerning ownership percentage for combined reporting. According to Warner, taxpayer’s Exhibit 22 was used during Department training sessions in 1986. The first page of that exhibit is entitled “Corporate Training Outline.” In that document, the Department policy on required percentage of ownership for combined reporting states: “Combined stock return includes only those corporations engaged in the unitary business and connected through at least 50% stock ownership.” (Emphasis added.)
On October 9, 2000, BOTA filed an order finding that (1) Panhandle and Helium were engaged in the same general fine of business; (2) were vertically integrated; (3) shared management; (4) that Panhandle had over 50% control of Helium through direct and indirect means; and (5) were unitary. Therefore, BOTA determined that Panhandle and Helium were entitled to file combined income tax reports. The Department filed a petition for reconsideration on October 23, 2000, which was denied by BOTA on November 7, 2000.
' On December 6, 2000, the Department filed a timely notice of appeal with BOTA and the clerk of the appellate courts. The matter is before this court pursuant to a K.S.A. 20-3018(c) transfer.
I. STANDARD OF REVIEW
The Department appeals BOTA’s final determination finding that Panhandle and Helium were a unitary business under K.S.A. 79-32,141. In an appeal from an order of BOTA, K.S.A. 77-621 controls this court’s scope of review. See K.S.A. 2000 Supp. 74-2426(c) (stating that actions of BOTA are subject to review in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq.).
Within the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-621(a) provides that unless “this act or another statute provides otherwise: (1) The burden of proving the invalidity of agency action is on the party asserting invalidity.” Additionally, K.S.A. 77-621(c) specifies that this court may grant relief from an order of BOTA only if we determine that:
“(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
"(2) the agency has acted beyond the jurisdiction conferred by any provision of law;
“(3) the agency has not decided an issue requiring resolution;
“(4) the agency has erroneously interpreted or applied the law;
“(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
“(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification;
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
We note that under K.S.A. 77-621, this court’s standard of review for an appeal from a BOTA decision is “somewhat broader than the traditional three-pronged scope of review as set forth in Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, Syl. ¶ 1, 436 P.2d 828 (1968).” In re Tax Appeal of A.M. Castle & Co., 245 Kan. 739, 741, 783 P.2d 1296 (1989). In Foote, this court noted that in reviewing the decision of an agency, a district court could not, on appeal, substitute its conclusion for that of the administrative tribunal, but was confined to the traditional three-part determination of whether, as a matter of law, “(1) the tribunal acted fraudulently arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.” 200 Kan. 447, Syl. ¶ 1.
BOTA is considered the paramount, lawfully constituted taxing authority in Kansas. Wirt v. Esrey, 233 Kan. 300, 314, 662 P.2d 1238 (1983). Kansas statutory and case law mandate that, on appeal, the Department bears the burden of showing BOTA’s decision was invalid. See K.S.A. 77-621(a)(l); see also In re Tax Appeal of Scholastic Book Clubs, Inc., 260 Kan. 528, 536, 920 P.2d 947 (1996) (stating that the party challenging an action taken by BOTÁ has the burden of proving it erroneous).
A. BOTA’s standard of review
The Department first asserts that because the action of denying Panhandle’s request for combined reporting was within its grant of statutory authority to administer and enforce K.S.A. 79-32,141, its final decision was presumptively valid and therefore, under the doctrine of operative construction, was entitled to judicial deference by BOTA. In addition, the Department maintains that under the statutory language of K.S.A. 79-32,141, only the Director of Taxation may determine whether to allow a taxpayer to file income tax returns on a combined basis; thus, without a finding that the Director’s decision was arbitrary, capricious, or unreasonable, BOTA’s decision is simply a wrongful substitution of its own interpretation of the statute for that of the Director.
In essence, the Department asks this court to find that, in conducting its evaluation of the Department’s final determination, BOTA failed to employ the correct standard of review. The Department asserts that “the Board’s inquiry was limited solely to whether the director’s discretion was arbitrary, capricious or unlawful.”
We first look to the Kansas statutes for BOTA’s grant of authority and proper standard of review. In K.S.A. 74-2437, the legislature granted BOTA the authority to hear appeals from the Director of Taxation and the Director of Property Valuation. In 1997, the legislature amended K.S.A. 74-2438, giving BOTA the authority to hear appeals from final decisions of the Secretary of Revenue or the Secretary’s designee. See L. 1997, ch. 126, § 5. Panhandle filed its notice of appeal of the Secretary of Revenue’s final determination on September 22,1998, and BOTA conducted a hearing on September 15-17, 1999. K.S.A. 2000 Supp. 74-2438 states, in pertinent part:
“An appeal may be taken to the state board of tax appeals from any finding, ruling, order, decision, final determination or other final action, including action relating to abatement or reduction of penalty and interest, on any case of the secretary of revenue or the secretary’s designee by any person aggrieved thereby. . . . Upon receipt of a timely appeal, the board shall conduct a hearing in accordance with the provisions of the Kansas administrative procedure act. The hearing before the board shall be a de novo hearing unless the parties agree to submit the case on the record made before the secretary of revenue or the secretary’s designee.” (Emphasis added.)
BOTA’s order of October 9, 2000, states:
‘This Board conducted a hearing in these matters on September 15-17,1999. After considering all of the evidence presented thereat, and being fully advised in the premises, the Board finds and concludes as follows:
“1. The Board has jurisdiction of the subject matter and of the parties, a proper and timely appeal having been filed, pursuant to K.S.A. 74-2438, and amendments thereto.”
Nothing in the record reflects any agreement by the parties to submit the case on the record made before the designee of the Secretary of Revenue. We conclude BOTA conducted a de novo review of this case.
Panhandle cites In re Appeal of Colorado Interstate Gas Co., 270 Kan. 303, 14 P.3d 1099 (2000), in support of its position that BOTA did not err in using a de novo standard of review. There, we considered the taxpayer’s contention that BOTA improperly determined that the order of the Director of Property Valuation (PVD) was entitled to deference and “that its standard of review was to determine whether the PVD intentionally and grossly disregarded the standards prescribed by K.S.A. 79-5a04.” 270 Kan. at 315. We reviewed K.S.A. 1996 Supp. 74-2438, and held that
“the hearing before BOTA shall be a de novo hearing unless the parties agree to submit the case on the record made before the PVD. The definition of a de novo hearing is a decision of the matter anew, giving no deference to findings and conclusions previously made. Thus, BOTA has the power and authority to exercise its judgment anew and independent of die PVD in determining the assessment of state assessed property, with no deference given to the valuation made by the PVD.” 270 Kan. 303, Syl. ¶ 1.
The Department cites the following cases in support of its contention that BOTA should have given its interpretation more deference: Udall v. Tollman, 380 U.S. 1, 16, 13 L. Ed. 2d 616, 85, S. Ct. 792, reh. denied 380 U.S. 989 (1965); Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 246, 834 P.2d 368 (1992); State Dept. of SRS v. Public Employee Relations Board, 249 Kan. 163, 166, 815 P.2d 66 (1991); Kaufman v. Kansas Dept. of SRS, 248 Kan. 951, 960, 811 P.2d 876 (1991); Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, 809, 667 P.2d 306 (1983); Crawford Manufacturing Co. v. State Comm. of Revenue and Taxation, 180 Kan. 352, Syl. ¶ 4, 304 P.2d 504 (1956); Wyandotte County Gas Co. v. Commission of Revenue and Taxation, 155 Kan. 619, 127 P.2d 481 (1942); Nutrena Mills, Inc. v. State Tax Comm., 150 Kan. 68, 91 P.2d 15 (1939).
In the United States Supreme Court case oí Tollman, the dispute centered around the Bureau of Land Management’s denial of leasing permits to drill for oil in the Kenai National Moose Range in Alaska, and the Secretary of the Interior’s later affirmance of the decision. The case involved the judicial review of an agency interpretation of an executive order. We note that the Tattman Court stated that a court must give “great deference to the interpretation given [a] statute by the officers or agency charged with its administration.” 380 U.S. at 16. We conclude, however, that this case has little bearing where, by statute, a party may appeal one agency’s decision to another highly specialized agency, such as the BOTA.
Of the Kansas cases cited by the Department, almost all reflect the same procedural pattern of judicial review of an underlying agency decision and do not concern the issue of combined reporting. Crawford Manufacturing Co. is the sole exception. In Crawford Manufacturing Co., the principle question was whether the Director of Revenue correctly determined that the direct or separate accounting method used by the appellant did not clearly reflect income and that the business of appellant was unitary in character with respect to its three plants. Procedurally, Crawford begins in amanner similar to this case. Following the Director of Revenue’s determination of unity and assessment of additional Kansas income tax, appellant requested review of the decision by the State Commission of Revenue and Taxation (Commission). Next, however, the action was tried in Wyandotte District Court pursuant to G.S. 1949, 74-2426, which provided for the judicial review of orders of the Commission; thus, despite similarities to the substantive issue raised in this case, Crawford does not provide instruction procedurally on the correct standard of review to be used by BOTA when considering an appeal from a decision of the Department.
Colorado Interstate Gas Co. presents stare decisis authority that cannot be ignored. In accordance with our decision in Colorado Interstate Gas Co., and the language of K.S.A. 2000 Supp. 74-2438, we conclude that in reviewing Panhandle’s appeal of the final decision of the Department, BOTA employed the proper standard of review when it considered the matter de novo.
B. The Department’s bright line rule
On appeal, the Department raises the tangential issue of whether its “bright line test” is rationally related to the controlling statute for unitary businesses, K.S.A. 79-32,141. Under the Department’s bright line test, before it will begin to consider whether two or more entities are operating as a unitary business, one entity must show it owns more than 50 percent of the stock of the other entity or entities. This issue was not specifically addressed in BOTA’s order. Because this was listed as an issue of law for BOTA’s determination at the prehearing conference, however, the inference may be drawn that BOTA decided the issue in the negative. Therefore, the matter deserves some comment.
K.S.A. 79-32,141, the controlling statute for combined reporting, reads:
“The director may allocate gross income, deductions, credits, or allowances between two or more organizations, trades or businesses (whether or not incorporated, or organized in the United States or affiliated) owned or controlled directly or indirectly by the same interests, if the director determines such allocation is necessary to prevent evasion of taxes or to clearly reflect income of the organizations, trades or businesses.”
In addition, the Department has promulgated a published regulation concerning K.S.A. 79-32,141, which states:
“A taxpayer may have more than one (1) ‘trade or business.’ In such cases, it is necessary to determine the business income attributable to each separate trade or business. The income of each business is then apportioned by an apportionment formula which takes into consideration the instate and outstate factors which relate to the trade or business the income of which is being apportioned.
“The determination of whether the activities of the taxpayer constitute a single trade or business or more than one (1) trade or business will turn on the facts in each case. In general, the activities of the taxpayer will be considered a single business if there is evidence to indicate that the segments under consideration are integrated with, dependent upon, or contribute to each other and the operations of die taxpayer as a whole. The following factors are considered to be good indicia of a single trade or business, and the presence of any of diese factors creates a strong presumption that the activities of the taxpayer constitute a single trade or business: (a) A taxpayer is generally engaged in a single trade or business when all of its activities are in the same general line.
“(b) A taxpayer is almost always engaged in a single trade or business when its various divisions or segments are engaged in different steps in a large, vertically structured enterprise.
“(c) A taxpayer which might otherwise be considered as engaged in more than one (1) trade or business is properly considered as engaged in one (1) trade or business when there is a strong central management, coupled with the existence of centralized departments for such functions as financing, advertising, research, or purchasing. Thus, some conglomerates may properly be considered as engaged in only one (1) trade or business when the central executive officers are normally involved in the operations of the various divisions and there are centralized offices which perform for the divisions the normal matters which a truly independent business would perform for itself, such as accounting, personnel, insurance, legal, purchasing, advertising, or financing.” K.A.R. 92-12-72.
Under K.S.A. 79-32,141, the Director of Taxation is given the authority to “allocate gross income, deductions, credits, or allowances between two or more organizations . . . owned or controlled directly or indirectly by the same interests . . . .” The authority of the Department is subject to review, however, in that the legislature has conferred upon BOTA the authority to hear appeals of decisions of the Secretary of Revenue or the Secretary’s designee. See K.S.A. 2000 Supp. 74-2438. BOTA is the paramount, lawfully constituted taxing authority in Kansas and, as such, “functions independently of the Director in matters of administrative judgment and decision.” Northern Natural Gas Co. v. Dwyer, 208 Kan. 337, 365, 492 P.2d 147 (1971), cert. denied 406 U.S. 967 (1972).
Moreover, in Colorado Interstate Gas Co., this court wrote:
“K.S.A. 1996 Supp. 74-2438 requires that BOTA exercise its judgment anew and independent of the PVD. It provides that the hearing before BOTA ‘be a de novo hearing unless the parties agree to submit the case on the record made before the director [now Secretary of Revenue].’ The very definition of a de novo hearing is ‘[a] reviewing court’s decision of a matter anew, giving no deference to a lower court’s findings.’ Black’s Law Dictionary 725 (7th ed. 1999).” 270 Kan. at 316-17.
We note that the evidence presented at the hearing does not support the Department’s claim that its 50 percent ownership bright line interpretation of K.S.A. 79-32,141 was in effect for the 1981-1984 reporting period in question. In addition, the more than 50 percent ownership requirement referred to by the Department as a bright line rule was never published in the Kansas Administrative Regulations.
Alan Corey stated he did not believe there necessarily was a clear policy established for 50 percent ownership during that time period. Earl Agent admitted that he could not point to anything in writing confirming the 50 percent ownership policy, even though his interpretation of the statute was that it required more than 50 percent ownership. Karen Warner produced a document used by the Department in training with a written policy on required percentage of ownership for combined reporting. That document stated: “Combined stock return includes only those corporations engaged in the unitary business and connected through at least 50% stock ownership.” Carol Ireland confirmed that the document appeared to be the official written policy of the Department at the time.
The Department’s more than 50 percent ownership rule is not reflected in the language of the Kansas statutes, case law, or even in the Department’s published regulations. BOTA did not mention the 50 percent ownership rule or make any findings in regard to its validity, and it was not necessary for BOTA to do so. The question of whether the bright line test is rationally related to the statute is a red herring issue because (1) the bright fine more than 50 percent test is not mandated by the language of K.S.A. 79-32,141 or K.A.R. 92-12-72; (2) the test may not have been in use during the time period in question; and (3) BOTA’s standard of review of a Department decision is de novo, not mere rationality review.
Under K.S.A. 2000 Supp. 74-2438, BOTA was required to conduct its review in accordance with the provisions of the Kansas Administrative Procedure Act, K.S.A. 77-501 etseq. BOTAhadthe authority to grant relief to Panhandle upon determining that the Department erroneously interpreted or applied the law. Thus, BOTA need not give deference to the Department’s bright fine test if it found the Department’s rule was an erroneous interpretation of Kansas law.
BOTA bears an independent responsibility to review a decision of the Department; this responsibility is foreign to the concept of deference. Colorado Interstate Gas Co., 270 Kan. at 318. It would be illogical to ask BOTA to conduct a totally independent review and yet to insist that BOTA defer to the Department’s interpretation of statute. Therefore, we conclude that BOTA did not act unreasonably by choosing not to follow the Department’s more than 50 percent rule and, instead, solely contemplating K.S.A. 79-32,141, K.A.R. 92-12-72, and Kansas case law in its resolution of the issue before it.
II. DIRECT OR INDIRECT CONTROL OF HELIUM
The next issue for consideration is whether BOTA erred in its determination that Panhandle had direct or indirect control of Helium and enjoyed a unitary relationship such that combined reporting was appropriate. The Department claims that BOTA mistakenly concluded that Panhandle owned or controlled Helium. The Department further asserts that “[t]his case turns on the question of control as that term is used in K.S.A. 79-32,141.’’
“In tax law the concept of unitary business arises when a corporation has one or more subsidiaries or divisions which are dependent . . . upon, or contribute to the parent corporation or other subsidiaries or divisions so, in essence, to constitute a homogenous enterprise. When such an entity exists it may be described as a unitary business and in determining the tax liability of the given subsidiary or division the taxing authority may consider the entire income of the unitary business and apportion taxes on the basis of the income attributable within the jurisdiction.” Pioneer Container Corp. v. Beshears, 235 Kan. 745, 747, 684 P.2d 396 (1984).
In a series of cases beginning in 1980, the United States Supreme Court filed opinions discussing the unitary business doctrine. In Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425, 63 L. Ed. 2d 510, 100 S. Ct. 1223 (1980), the Court stated that a unitary business is characterized by “functional integration, cen tralization of management, and economies of scale.” 445 U.S. at 438. This benchmark test was restated by the Court in Allied-Signal, Inc. v. Director, Div. of Taxation, 504 U.S. 768, 119 L. Ed. 2d 533, 112 S. Ct. 2251 (1992); Container Corp. v. Franchise Tax Bd., 463 U.S. 159, 77 L. Ed. 2d 545, 103 S. Ct. 2933 (1983); F.W. Woolworth Co. v. Taxation & Revenue Dept., 458 U.S. 354, 73 L. Ed. 2d 819, 102 S. Ct. 3128 (1982); and Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U.S. 207, 64 L. Ed. 2d 66, 100 S. Ct. 2109 (1980).
In ASARCO Inc. v. Idaho State Tax Comm’n, 458 U.S. 307, 73 L. Ed. 2d 787, 102 S. Ct. 3103 (1982), the Supreme Court made another important distinction. There, one of ASARCO’s four subsidiaries, M.I.M., was 52.7 percent owned by ASARCO. The Court, however, found ASARCO and M.I.M. were not operating as an unitary business because “[although ASARCO has the control potential to manage M.I.M., no claim is made that it has done so.” 458 U.S. at 323. The Court noted that M.I.M.’s business operations were conducted “entirely independently” of ASARCO, that M.I.M.’s contacts with ASARCO were minimal, and that M.I.M. sold only about 1 percent of its output to ASARCO. 458 U.S. at 323. Thus, in ASARCO, the Court found the exercise of actual control to be more significant than the bare legal right to control a company. 458 U.S. at 326-28.
For purposes of Kansas state income tax, interrelated multijurisdictional corporations may be taxed on a unitary basis if the parent and the subsidiary share such an interdependent relationship so as "to form one integral business rather than several business entities.” Pioneer Container Corp., 235 Kan. 745, Syl. ¶ 3. “K.S.A. 79-32,141 authorizes utilization of the combined report method of allocation of income and expenses when it is properly determined two or more corporations are engaged in a multi-state unitary business.” 235 Kan. at 757.
A review of Kansas decisions reveals that in order to determine whether a corporate entity and its affiliates are engaged in a unitary business activity, the dependency/contribution test is proper. In Crawford Manufacturing Co., this court endorsed the dependency/contribution test for unitaiy business activity, stating:
“Whether a multi-state business is separate or unitary depends upon the manner in which its business is conducted. The essential test to be applied is whether or not the operation of the portion of the business within the state is dependent upon or contributory to the operation of the business outside the state. If there is such relationship, the business is unitary.” 180 Kan. 352, Syl. ¶ 2.
“Stated another way, the test is whether a business’ various parts are interdependent and of mutual benefit so as to form one business rather than several business entities and not whether the operating experience of the parts is the same in all places. [Citations omitted.] Various portions of a business may be carried on exclusively in different states without destroying its unitary character if the integral parts are of mutual benefit to one another.” 180 Kan. at 359.
In its brief, the Department stated: “Kansas is a dependency/ contribution state, not a three unities state.” The Department further admits that “there is no statute that specifically precludes combination if an entity owns 50% or less of a business interest’s voting stock.” Yet, much of the Department’s brief concerns itself with the argument that controlling ownership (more than 50 percent) must be shown before a unitary relationship can be found.
To advance its argument that a more than 50 percent ownership requirement is a proper threshold determination, the Department cites California and North Dakota case law, and various statutes from the states of Maine, Colorado, Nebraska, New Mexico, New York, Ohio, Utah, and Virginia. The Department argues that because K.S.A. 79-32,141 was adopted as part of the Uniform Division of Income for Tax Purposes Act (UDITPA), K.S.A. 79-3271 et seq., this court’s interpretation of that statute should conform with the decisions of other states because “the bedrock of UDITPA is multistate uniformity.” The Department’s argument in favor of multistate conformity is unconvincing for several reasons. See also K.S.A. 79-4301 et seq. (Kansas Multistate Tax Compact).
First, established law in Kansas does not support a strict more-than-50-percent-ownership requirement. In Pioneer Container Corp., this court examined the three-unities test used by California courts, which looks at: “unity of ownership; unity of operation as evidenced by central purchasing, accounting and management; and unity of use in its centralized executive force and general system of operation.” 235 Kan. at 749. However, in Pioneer Container Corp., this court considered and rejected the three-unities test, instead upholding the dependency/contribution test.
In subsequent opinions, we have made it clear “that Kansas has adopted the dependency/contribution test as the appropriate test to be applied in determining whether two or more business entities are unitary for taxation purposes.” In re Tax Appeal of A.M. Castle & Co., 245 Kan. 739, 742-43, 783 P.2d 1296 (1989). See also In re Tax Appeal of Broce Construction Co., Inc., 27 Kan. App. 2d 967, 971-76, 9 P.3d 1281 (2000) (restating and applying the dependency/contribution test).
Second, according to the United States Supreme Court, there is no necessity for multistate uniformity in this area of the law. In Container Corp., the Court stated: “A final point that needs to be made about the unitary business concept is that it is not, so to speak, unitary: there are variations on the theme, and any number of them are logically consistent with the underlying principals motivating the approach.” 463 U.S. at 167.
Third, rather than striving for uniformity with other state interpretations, this court may instead strive to achieve uniformity with federal law. One scholar writing about the adoption of UDITPAin Kansas noted that the technical advisory committee “used the approach of conforming the Kansas Act to the federal Code,” and stated that K.S.A. 79-32,141 was “comparable to section 482 of the Code.” Cordes, The Kansas Conformity Income Tax Act: Part II, 17 K.L.R. 289, 289, 309 (1969).
When two or more businesses are controlled by the same interests, the Commissioner of Internal Revenue may allocate or distribute income to prevent tax evasion under the authority of 26 U.S.C. § 482. “No definition of ‘control’ is contained in section 482. It has been opined that this omission was intentional in order to allow for flexibility of administration. [Citation omitted.]” B. Forman Company v. C.I.R., 453 F.2d 1144, 1152 (2d Cir. 1972), cert. denied 407 U.S. 934 (1972). The IRS/Treasury Regulation, 26 C.F.R. § 1.482-1(i)(4), p. 538 (2001), states, however, that “[t]he term ‘controlled’ includes any kind of control, direct or indirect, whether legally enforceable, and however exercisable or exercised. It is the reality of the control which is decisive, not its form or the mode of its exercise.”
In B. Forman Company, the United States Court of Appeals for the Second Circuit considered the applicability of 26 U.S.C. § 482 where two competing corporations, McCurdy and Forman, agreed to form a third corporation, Midtown, to develop a shopping center which would adjoin the rear entrances to their respective stores. “McCurdy and Forman had no common shareholders, directors or officers.” 453 F.2d at 1147. McCurdy and Forman each owned 50 percent of the shares of Midtown. The Board of Directors of Midtown was comprised of three directors designated by McCurdy and three designated by Forman. The taxpayers contended that 26 U.S.C. § 482 was not applicable because neither McCurdy nor Forman controlled Midtown. The Second Circuit court disagreed, stating:
“In order to find control, no percentage requirements are specified nor are any precise requirements necessary. The trend in the recent case law is to apply the realistic approach. [Citations omitted.]
“To contend that these parents do not control their child is to fly in the face of reality. They have had complete control of Midtown from the day of conception (its incorporation) throughout the years relevant to this case. Every act of Midtown has been dictated by papa and mamma who, directly or indirectly, have financed its career and controlled its every move.” 453 F.2d at 1153.
To construe K.S.A. 79-32,141 consistently with the federal interpretation of 26 U.S.C. § 482, this court should take note of the decision in B. Forman Company, Inc., allowing allocation where the corporate parents each owned 50 percent of a third subsidiary corporation. See 453 F.2d at 1155-57.
Fourth, although the statutes of other states mandate the requirement of more than 50 percent ownership to show control, case law often must relax this requirement to reflect corporate reality. For example, under the three-unities test, the California Revenue and Tax Code § 25105 (West 1992) defined unity of ownership: “Direct or indirect ownership or control of more than 50 percent of the voting stock of the taxpayer shall constitute ownership or control for purposes of this article.” See Rain Bird Sprin kler Mfg. Corp. v. Franchise Tax Bd., 229 Cal. App. 3d 784, 789, 280 Cal. Rptr. 362 (1991). However, the California Court of Appeals has held that ownership and control may be attributed to two corporate partners who each own 50 percent of a third corporation’s stock. See Hugo Neu-Proler Internat. Sales Corp. v. Franchise Tax Bd., 195 Cal. App. 3d 326, 332, 240 Cal. Rptr. 635 (1987); see also Rain Bird Sprinkler Mfg. Corp., 229 Cal. App. 3d at 792-93, n. 6 (declining to follow the more than 50 percent ownership rule blindly).
For these reasons, this court concludes that, under K.S.A. 79-32,141, a strict requirement of more than 50 percent ownership is not necessary to demonstrate control in a unitary business relationship.
Next, we must consider whether BOTA erred in its determination that Panhandle had direct or indirect control of Helium and enjoyed a unitary relationship such that combined reporting was appropriate. The Department argues that the substantive facts did not establish that Panhandle controlled Helium. Instead, the Department contends that either “1) Helium made the major policy decisions or performed the major executive functions by itself; or, 2) the major policy decisions and major executive functions were performed by Panhandle only in concert with Distillers.”
In regard to the second alternative, the Department argues for the first time on appeal that Helium had two equal masters, Panhandle and Distillers. The question of whether Distiller’s enjoyed a unitary relationship with Helium and Panhandle was not at issue in the BOTA proceedings. BOTA identified the issue before it as “whether Panhandle Eastern Pipeline Company and National Helium Corporation should be considered unitary . . . .” In an appeal from an administrative agency decision, one is limited to the issues raised at the administrative hearing. In re Tax Appeal of Intercard, Inc., 270 Kan. 346, 347, 14 P.3d 1111 (2000). Because this issue was not raised below, we cannot address it here.
The only remaining issue is whether BOTA erred in its determination that the substantive facts established that Panhandle directly or indirectly controlled Helium. The Department asserts that BOTA’s decision was in error because substantive facts demon strate that Helium made major policy decisions or performed the major executive functions by itself.
“BOTA is a specialized agency that exists to decide taxation issues, and its decisions should be given great weight and deference when it is acting in its area of expertise.” In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. 737, 749, 973 P.2d 176 (1999) (citing In re Tax Appeal of Boeing Co., 261 Kan. 508, 515, 930 P.2d 1366 [1997]). Under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, this court may grant relief “only when it has made certain determinations, including that the agency erroneously interpreted or applied the law, that the agency made determinations of fact not supported by substantial evidence, that the agency engaged in an unlawful procedure or failed to follow prescribed procedure, or that the agency acted unreasonably, arbitrarily, or capriciously.” In re Tax Appeal of Chief Industries, Inc., 255 Kan. 640, 643-44, 875 P.2d 278 (1994) (listing the grounds for relief found in K.S.A. 77-621[c][4],[5],[7], and [8]). The Department bears the burden of proving the invalidity of BOTA action. 255 Kan. at 643.
To support its position that Helium performed major executive functions independently, the Department notes that Helium owned title in all of its facilities and equipment, hired and fired its own employees, approved its own budget, and paid Panhandle for accounting, legal, and employee stock option plan services. In addition, Helium hired and fired top level managers, and Helium’s board approved its purchases, not Panhandle.
BOTA’s findings were incorporated in its order of October 9, 2000. Using the test set forth in A.M. Castle & Co., BOTA found that: (1) Helium and Panhandle were engaged in the same general fine of trade or business — that of processing and transporting natural gas; (2) that expert witness testimony established that Panhandle and Helium were vertically integrated and dependent on each other; and (3) that due to shared board members, shared administrative and marketing services, and Panhandle’s more than 50 percent control of Helium through direct and indirect means, the evidence showed centralized management.
At the hearing, both Kalen and Wilbers testified that the president of Helium reported directly to the president of Panhandle. Distillers was not active in the day-to-day operations of Helium, but Panhandle exercised control over the day-to-day operations of Helium. In addition, Distillers only met annually with Helium to review budgets and declare dividends.
Kalen agreed that the operations of Panhandle and Helium were functionally integrated and centrally managed by Panhandle so it could maintain the integrity of its pipeline system. Kalen stated it was “absolutely necessary that the helium plant compressors continued to function, as our own compressors function every day, ever hour; and it just was an integral part of the total operations.” Moreover, he acceded that the Panhandle-Helium operating relationship could be characterized as different steps in a large vertically structured enterprise, wherein “the helium plant was in effect preparing the gas for quality control to meet [Panhandle’s] main-line tariff specifications . . . [by removing] the water content and hydrocarbon content . . . .”
At the BOTA hearing, the testimony of Panhandle’s expert witnesses J. Thomas Johnson, Walter Hellerstein, J.D., Richard D. Pomp, and Dr. Richard E. Olson supported the finding of BOTA that Panhandle and Helium operated in a unitary fashion.
Johnson testified that, in light of his experience as tax commissioner, “there’s no question that the unitary relationship existed, not only for the audit period, but, in all likelihood, probably existed far before that audit period . . . .”
Hellerstein characterized the operation as a “single operational enterprise” where one company’s operation was essential to the other. Hellerstein stated: “Dependency and contribution, flow of value, flow of goods, whatever your test is, it’s met here.” Heller-stein’s expért report concluded, “. . . the evidence is clear that The actual exercise of control’ [of Helium] rested with Panhandle.”
According to Pomp, “a vertically integrated manufacturing activity is the quintessential of a unitary business for which a combined report is needed,” and the Panhandle-Helium relationship evidenced a vertically-integrated operation.
Olson noted that under securities law, the 9 percent interest Panhandle had in Distillers would be considered significant. Olson further testified that in economic terms this court’s dependency/ contribution test meant that companies were unitary “if they are essentially interwoven or intertwined, [and could not] operate very well independently, or could not operate well without each other.” He concluded that “Panhandle treated Helium as pretty much as a company of its own . . . and they did control the day-to-day operation.”
None of the arguments of the Department serve to convince us that BOTA erroneously interpreted or applied the law, made determinations of fact not supported by substantial evidence, engaged in an unlawful procedure or failed to follow prescribed procedure, or acted unreasonably, arbitrarily, or capriciously.
Affirmed.
Davis, J., not participating.
Brazil, Chief Judge Retired, assigned. | [
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The opinion of the court was delivered by
Lockett, J.:
Landowner Robert J. Creason appeals a jury determination of compensation due for the total taking of his rural residential property by Wyandotte County, Kansas, for a speedway project. Creason claims the trial judge erred in (1) instructing the jury to disregard his expert testimony on the commercial and domestic values of a gas well on the property; (2) denying his motion in limine and overruling his objections to the defendant’s expert testimony of value based on the comparative sales method; (3) refusing to permit his cross-examination of a witness as to a prior panel appraisal of the property which included a value for the gas well; and (4) failing to give his requested jury instruction as to valuation of special use property.
Creason was the owner of rural residential property in Wyandotte County, comprised of approximately 31.5 acres. In addition to Creason’s residence, the property contained a horse bam, a riding facility, a large stocked lake protected by groundwater filters, a large industrial shop building, over 2,800 cultivated trees, and an operating natural gas well.
The gas well was used for Creason’s personal consumption. After the well was placed in production in the early 1980’s, Creason extended a gas fine to the vicinity of the gas company’s line at the edge of his property. The gas company tested the gas and offered Creason a contract for the sale of the gas. However, Creason did not sign the contract because it required him to be available on the property to monitor the well.
On November 10, 1998, the Unified Government of Wyandotte County, Kansas City, Kansas, (County) filed an eminent domain action to acquire Creason’s property for the construction of the Kansas Speedway project. The court-appointed appraisers awarded Creason $370,000 for the taking of his property. Creason was dissatisfied with the award and appealed to the district court.
On May 15-18, 2000, the sole issue for the jury to determine was the amount of just compensation for the property taken. After the evidence was presented, the jury was instructed that the measure of compensation it was to award was the fair market value of the property immediately before its taking. “Fair market value” was defined by the district court as the amount in terms of money that a well-informed buyer is justified in paying and a well-informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion. The jury was further instructed that in determining fair market value, it should consider all of the possible uses to which the property could have been put, including the best and most advantageous use to which the property was. reasonably adaptable, and that the uses considered must be so reasonably probable as to have had an effect on the market value of the property at the time of the taking. The jury was then specifically instructed to disregard the testimony of Dwayne McCune (Creason’s expert) and Creason regarding the separate value of the gas well on Creason’s property and to not award any separate amount as damages for Creason’s gas well.
The testimony regarding the fair market value of the property without the gas well was set out for the jury. The court then listed, the witnesses and the amounts the witnesses had testified to regarding the fair market value of Creason’s property immediately prior to the taking:
“Robert J. Creason $471,000
(Property Owner)
“Gary Gurss $394,000
“(Witness) [real estate appraiser who testified on behalf of Creason]
“Bemie Shaner $310,000
“(Witness) [real estate appraiser who testified on behalf of the County]
“Christopher McCord $305,000
“(Witness) [real estate appraiser who testified on behalf of the County]”
The juiy returned a verdict of $378,000 as just compensation for the taking of Creason’s property. Creason appealed, raising three issues.
Our jurisdiction is pursuant to K.S.A. 26-504 (an appeal from a final order in an eminent domain proceeding).
COMMERCIAL AND DOMESTIC VALUES OF THE GAS WELL
This jury trial commenced on May 15, 2000. On July 14, 2000, approximately 2 months later, this court filed City of Wichita v. Eisenring, 269 Kan. 767, 7 P.3d 1248 (2000). Therefore, the district court did not have the advantage of our decision in City of Wichita v. Eisenring at the time of trial. Some issues in this case are controlled by the standards and the law stated in City of Wichita v. Eisenring.
The measure of compensation is the fair market value of the property or interest at the time of the taking. K.S.A. 26-513(b). Prior to 1999, Kansas did not statutorily define fair market value. Compare K.S.A. 26-513 (Furse 1993) with K.S.A. 26-513. The case law prior to 1999 recognized three approaches to property valuation: the comparable sales method (also known as the market data method), the depreciated replacement cost method, and the capitalization of income method, which is based upon what the property is producing or is capable of producing in income. Previously, the favored approach to valuation in Kansas was the comparable sales approach. See Ellis v. City of Kansas City, 225 Kan. 168, 172, 589 P.2d 552 (1979). Because, in most instances, comparable sales of property in the same vicinity, with similar characteristics, usually resulted in a very accurate reflection of the fair market value of the property taken, judicial preference for the comparable sales approach was well established in this state. City of Wichita v. Eisenring, 269 Kan. at 774. Due to its sometimes speculative nature, the capitalization of income approach to valuation was strictly limited to cases where it was difficult, if not impossible, to use the comparable sales approach. 269 Kan. at 774.
In prior condemnation cases, the “unit rule” required that improvements, located upon land which is condemned, are not to be valued separately but are a part of the real estate and must be considered in determining the value of the land taken. Ellis, 225 Kan. 168, Syl. ¶ 1. The “unit rule” denoted a process of appraisal whereby the total value of real estate is first determined without placing a value on each of the separate contributing items. Consid eration of the value of buildings and improvements is limited to the extent they enhance the value of the land taken. 225 Kan. at 171. In contrast, the “summation method” of appraisal denotes a process of appraisal whereby each of several items that contribute to the value of real estate are valued separately and the total represents the market value thereof. Use of this method of appraisal has generally been rejected since it fails to relate the separate value of the improvements to the total market value of the property. City of Manhattan v. Kent, 228 Kan. 513, 518, 618 P.2d 1180 (1980).
The 1999 amendment to K.S.A. 26-513 included the addition of subsection (e), which provides:
“ ‘F air market value’ means the amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion. The fair market value shall be determined by use of the comparable sales, cost or capitalization of income appraisal methods or any combination of such methods.” (Emphasis added.)
In City of Wichita v. Eisenring, this court reviewed the 1999 amendment and held that the comparable sales method was no longer the preferred method of valuation in condemnation proceedings. 269 Kan. at 774. By virtue of the 1999 amendment, the three generally recognized methods of valuing real estate stood on equal footing: the depreciated replacement cost approach — the reproduction cost of the property at the time of taking less depreciation; the comparable sales approach — the value of the property based upon the recent sales of comparable properties; and the capitalization of income approach — the capitalization of net income from the property. 269 Kan. at 774.
As noted previously, some cases decided prior to the 1999 amendments to K.S.A. 26-213 recognized that the comparable . sales approach to valuing property was not always appropriate because there were situations where the property was so unique that there was no ascertainable market, and there were no sales of reasonably similar or comparable property. In such a case, the depreciated replacement cost method or the capitalization of income method was used to derive a value for the property taken and a fair determination of the damages due. Ellis v. City of Kansas City, 225 Kan. 168, Syl. ¶ 3, 589 P.2d 552 (1979). As this court stated in Eisenring v. Kansas Turnpike Authority, 183 Kan. 774, 779, 332 P.2d 539 (1958):
“The absence of market value, in the sense that there is a lack of evidence of comparable sales, does not prevent recovery by the owner in the event of condemnation. It occasionally happens that a parcel of real estate or a leasehold interest taken by eminent domain is of such a nature, or is held or has been improved in such a manner, that, while it serves a useful purpose to its owner, he would be unable to sell it at anything like its real value. Where the usual means of ascertaining market value are lacking, or other means must from necessity of the case be resorted to, it is proper to determine the market value by considering the intrinsic value of the property, and its value to the owners for their special purposes. The owner of the property taken is not required under such circumstances to make any pecuniary sacrifices.”
Prior to the 1999 amendments to K.S.A. 26-513, this court consistently recognized that the unit rule was applicable only to cases where the comparable sales approach was utilized to value the property taken. The depreciated replacement cost or capitalization of income methods of appraisal did not require application of the unit rule. In instances where these methods are used, it would be an empty formalism to require the expert witness to state the overall value before testifying as to how the value was determined. See, e.g., Ellis, 225 Kan. at 172. As stated in Eisenring v. Kansas Turnpike Authority, 183 Kan. at 779-80:
“In the absence of market value, because the special type of property is not commonly bought and sold, resort may be had to the testimony of more specialized experts. The value of property for a special use to which it is adapted or put may be shown by persons familiar with such use, even though they are not familiar with land values generally.”
Here, Creason called an expert in petroleum engineering, Dwayne McCune, to testify on the valuation of the gas well for both domestic and commercial purposes. McCune had prepared a gas reserve estimate and evaluation of Creasoris property as of August 29, 1998. McCune testified that the well was drilled and finished in a manner to produce gas commercially. McCune testified that the well had approximately 30 years of future production as of the date of taking, if the reserves were exploited only from the existing well. McCune’s opinion was that the future income value of the well was $223,791, reduced to a present value of $155,136.
When considering jury instructions, and after reviewing Eisenring v. Kansas Turnpike Authority, 183 Kan. 774, the trial judge stated:
“I have now had an opportunity as counsel know to read that case in detail, and there just is absolutely no question in my mind that that does not cover tire situation that we have here. I don’t think that anticipates a piece of property that can be — is impossible to put any market value on it. I think it’s totally different here, and amongst other tilings, would anticipate — would even be more close in die event that this gas well was a working well at the present time and so forth, and had been utilized for that purpose. But the situation we have here is that it’s in the words of tills case, speculative and conjectural — a conjectural and speculative use and value placed upon that; and also, as they stated at page 782 down at die bottom here, Eisenring’s lease was in operation, and the element of income was present at the time of die condemnation, not in the uncertain future. And I diink diat diat’s what applies here, diat kind of language in the situation that we have here. So, I — that’s going to be my ruling on diat issue, and therefore, the [PIK Civ. 3d] 131.08 as modified instruction will not be given, and the plaintiff will not be able to argue that testimony supported by Mr. McCune as an element of the fair market value of this property, and accordingly, I see no other use to indicate at tíiis time Mr. McCune’s testimony should be stricken because diat was die only purpose for [which] it was offered.”
Based on Eisenring v. Kansas Turnpike Authority, the judge instructed the jury to disregard McCune’s testimony regarding the separate value of the gas well in ascertaining the fair market value of the property.
Creason contends that the trial judge erred in instructing the jury to disregard his expert’s testimony on the commercial value of the gas well. He argues that the property is unique because it contains a gas well, and as a unique property, it is not amenable to valuation by the comparable sales method. Creason argues that to arrive at the fair market value of his property, the capitalization of income method of valuation must be utilized, and McCune’s testimony regarding the potential income represented by the gas reserves was necessary to value the property using the capitalization of income method of valuation.
Although, the County’s valuation experts did not rely on the capitalization of income method of valuation to appraise Creason’s property, the County does not take issue with the use of the capitalization of income method of valuation as a valid method of property valuation in this condemnation case. The County contends, however, that the trial judge properly applied the “unit rule” in excluding Creason’s evidence regarding his natural gas well. The County argues that the legislature’s failure to amend the “unit rule” articulated in K.S.A. 26-513(d) when the legislature added subsection (e) of that statute specifically authorizing the use of the capitalization of income and the depreciated replacement cost methods of property valuation is a clear indication that the legislature intended the “unit rule” to pertain to all three valuation methods. We note that the “unit rule” was not the basis of the trial judge’s decision to exclude the commercial valuation of the gas well from the jury’s consideration.
The 1999 Kansas Legislature did not amend subsection (d) of K.S.A. 26-513, which includes the “unit rule.” Subsection (d) provides:
“Factors to be considered. In ascertaining the amount of compensation and damages, the following nonexclusive list of factors shall be considered if such factors are shown to exist. Such factors are not to be considered as separate items of damages, but are to be considered only as they affect the total compensation and damage under the provisions of subsections (b) and (c) of this section. Such factors are:
“(1) The most advantageous use to which the property is reasonably adaptable.” (Emphasis added.)
In addition to the first factor set out, the statute enumerates 14 other factors which are not applicable to the facts of this case.
As noted, the depreciated replacement cost and the capitalization of income methods of valuation were used in Kansas to value unique properties long before the 1999 amendment to K.S.A. 26-513. The 1999 amendment placed those methods of valuation on an equal footing with the comparable sales approach, thereby permitting the use of the depreciated replacement cost and the capitalization of income methods where those methods provide information pertaining to the value of the property. “The value of property for a special use to which it is adapted or put may be shown by persons familiar with such use, even though they are not familiar with land values generally.” (Emphasis added.) Eisenring v. Kansas Turnpike Authority, 183 Kan. at 779-80. The reasons for allowing the jury to consider evidence of the income potential of property apart from the property’s value as a whole remains as valid after the amendment as it was prior to the amendment: The income value of property often must be provided by experts who have no expertise in property valuation generally.
Although expert testimony evidence may be admitted which relates solely to the future income potential of the property, an aspect of the unit rule nevertheless remains effective to provide that an award of compensation must reflect the value of the property as a whole. There is an important distinction between the measure of value and the evidence admissible to prove it. The award of just compensation cannot assign separate values to component parts of the property. In other words, one value cannot be given to the land, another value to the water rights, and another to the mineral rights. However, to demonstrate how the value of the property as a whole is enhanced by a natural asset, evidence can be introduced of its separate value.
Just compensation for property taken in a condemnation proceeding is the fair market value of the property taken. Fair market value means the amount in terms of money that a well-informed buyer is justified in paying and a well-informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion. K.S.A. 26-513(e). Properly instructed, the jury could have found that the commercial value of the gas well on Creason’s property would have an effect on the amount of money that a well-informed buyer would be justified in paying for Creason’s property. The trial judge erred by failing to allow: the juiy to consider file testimony relative to the value of the gas well.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Genevevo Navarro, from his conviction of the premeditated first-degree murder of Michael Burkes. Navarro was sentenced to fife imprisonment without the possibility of parole for 25 years. He appeals pursuant to K.S.A. 22-3601(b)(l).
Navarro contends the State failed to prove premeditation; the trial court erred in denying his request for a mistrial because the State violated an order in hmine prohibiting testimony that Navarro was a drug dealer; the State committed prosecutional misconduct during closing argument; and the trial court erred in instructing the jury that it must first consider whether the defendant was guilty of the greater offense before considering any lesser offenses.
Burkes lived in high-rise apartments located at 15 North 10th Street in Kansas City, Kansas. Around 7:30 p.m. on September 23, 1997, as Burkes walked down the alley behind Black’s Liquor Store and Central Pawn Shop, located across the street from his apartment building, he was confronted by three men and fatally stabbed.
Dr. Erik Mitchell, a forensic pathologist, performed the autopsy on Burkes. Mitchell found four wounds on Burkes’ body, including a very small puncture on the left side of the neck; a much larger horizontal stab wound in the left side of the neck that nearly severed the carotid artery and sliced through the wall of the throat; a stab wound in the left side of the back that went between the ribs and punctured the spleen; and a stab wound to the left thigh close to the femoral artery. The large stab wound to the neck created a connection between the blood coming from the carotid artery and Burkes’ airway. According to Mitchell, it was likely that the stab wound to the neck and to the thigh occurred at approximately the same time, followed by the stab wound to the spleen.
Mitchell also testified that the test results performed on Burkes indicated the presence of alcohol and benzoylecgonine, a breakdown of a cocaine product, in his bloodstream. He indicated that he would expect that level of alcohol to decrease performance and might compromise Burkes’ ability to defend himself.
I. MOTION FOR JUDGMENT OF ACQUITTAL
Navarro contends that the court erred because, even viewed in a light most favorable to the State, there was not sufficient evidence to support the submission of a charge of premeditated first-degree murder to a jury. The State argues that it elicited sufficient evidence at trial to support a jury’s conclusion that the murder was premeditated.
“In ruling on a motion for judgment of acquittal, if a trial judge concludes from the evidence that a reasonable mind might fairly decide a defendant is guilty beyond a reasonable doubt, the motion must be denied and the case must go to the jury. On appeal, the reviewing court must decide whether a rational factfinder could have found die accused guilty without a reasonable doubt. [Citation omitted.]” State v. Valdez, 266 Kan. 774, 784, 977 P.2d 242 (1999).
At the end of the State’s evidence at trial, Navarro moved for a judgment of acquittal on the basis that the evidence presented did not demonstrate premeditation. The trial court stated:
“I just don’t see any evidence of premeditation here at this point — well, let me put it this way, I shouldn’t say there is no. It’s very thin. And I’m going to withhold a ruling on that point. I’m going to take that motion under advisement, but I’m not — since I’m not admitting the possibility of two lessers, we can go ahead and proceed with the testimony here; and I’ll consider that later, though.”
Once again, following the State’s presentation of its case in chief and following the testimony of several defense witnesses, Navarro moved the court for a judgment of acquittal. Navarro asserted that there was insufficient evidence for a finding of premeditated first-degree murder, second-degree manslaughter, or any other crime and asked for a dismissal. Counsel for Navarro asked the court to consider language on premeditation found in State v. White, 263 Kan. 283, 950 P.2d 1316 (1997), and in the Pattern Instructions in Kansas (PIK) defining premeditation to mean to plan, contrive, scheme, or think over the matter beforehand. The trial court orally reviewed the four circumstances listed in White giving rise to the inference of premeditation. The court then stated:
“The dealing of lethal blows after the deceased fell and [was] rendered helpless. Reading it seems to me that is significant in this case. To me, if this man had suffered one stab wound that caused his death, that that would be — that would suggest to me because there was no premeditation — that there was one intentional stab wound, that diere was no premeditation; however, the fact here is he suffered four wounds at different times. To me, diat is significant, that those who attacked the deceased here intendfed] to kill him and did somediing that suggests there was premeditation.”
Following his jury trial, Navarro filed motions for new trial, for mistrial, and for judgment non obstante veredicto, alleging that the State had failed to meet its burden of proof to show that he had committed the crime of first-degree murder. The trial court held a post-trial hearing to consider Navarro’s motions. The trial court characterized Navarro’s argument as “simply stating there was not sufficient evidence to support a charge or verdict of first-degree murder.” The court ruled against Navarro, summarizing its ruling as follows:
“Simply stated, in summaiy, I believe that the evidence was that . . . the victim was stabbed numerous times at different locations, and that this was evidence that there was premeditation involved. There was evidence that his was more— much more than one thrust of a knife done in anger, or that it was done on the spur of the moment without premeditation. The jury certainly had the option of deciding that that was in fact what had happened here, and they had the option of finding that this was intentional but not premeditated. They could have returned a verdict of second-degree murder. They could have found that this was a killing done intentionally but upon a sudden quarrel, because they had the option of finding the defendant guilty of voluntary manslaughter; however, the jury found that there was evidence of premeditation here obviously by their verdict; and I believe that evidence was sufficient to support that finding. So those points will be — the motion on those points will be denied.”
On appeal, this court must decide whether a rational factfinder could have found Navarro guilty of first-degree murder beyond a reasonable doübt.
In State v. Jensen, 197 Kan. 427, 434, 417 P.2d 273 (1996) (quoting State v. Murray, 83 Kan. 148, 160, 110 Pac. 103 [1910]), this court noted:
“ ‘At the common law homicides were of two classes only — those done with malice and called murder, and those done without malice and called manslaughter.’ ”
In 1993, the legislature removed the term “malice” from the statutory definition of murder in the first degree. The statutory definition of premeditated first-degree murder is found in K.S.A. 21-3401(a), which states: “Murder in the first degree is the killing of a human being committed: (a) Intentionally and with premeditation . . . .” The term “premeditation” is not defined in the statute, but is to be given the meaning established by this court. See Comment, PIK Crim. 3d 56.01 (1999 Supp.).
Historically, premeditation was said to mean “that there was a design or intent before the act; that is, that the accused planned, contrived and schemed beforehand to kill [the victim].” State v. McGaffin, 36 Kan. 315, 13 Pac. 560 (1887). Today, however, “[premeditation as an element of first-degree murder means to have thought over the matter beforehand.” State v. Saleem, 267 Kan. 100, Syl. ¶ 2, 977 P.2d 921 (1999). Stated another way, “[p]remeditation ‘is a state of mind’ relating to a person’s reasons and motives for acting as he or she did.” Saleem, 267 Kan. at 105.
“Unless a person actually communicates his or her reasons for taking another’s life, evidence of premeditation must be proved by circumstantial evidence. Such evidence, however, is sufficient to establish even the gravest offenses .... Premeditation cannot be inferred from the use of a deadly weapon alone, but it may be inferred where other circumstances also exist. [Citations omitted.]
“The circumstances which may give rise to an inference of premeditation include but are not limited to (1) the nature of the weapon used, (2) a lack of provocation, (3) the defendant’s conduct before and after the killing, (4) threats and/or declarations made by the defendant before and after the killing, and (5) lethal blows inflicted after the deceased was felled and rendered helpless. [Citations omitted.]” State v. Jamison, 269 Kan. 564, 571-72, 7 P.3d 1204 (2000).
Navarro’s position on appeal is that if this had been a premeditated murder, Burkes would have been killed immediately. Instead, Navarro contends that it was not until the argument escalated that Burkes was stabbed. The State urges that premeditation is substantiated in this case by the following factors: “(1) the fact that a knife was brought to an argument, (2) the fact that there was a lack of provocation by the victim, and (3) the fact that a potentially lethal blow was dealt after the deceased was rendered helpless.” Both parties believe the testimony of Mitchell support their positions.
The State cites State v. Henson, 221 Kan. 635, 562 P.2d 51 (1977), where the evidence showed that the victim had been stabbed repeatedly with a knife in the throat and chest. There, this court stated:
“The evidence disclosed that either the stab wounds in the heart or the slicing of the victim’s neck would have caused death, thus an inference could well be drawn that diere was a striking of lethal blows after the victim was rendered helpless.” Henson, 221 Kan. at 640.
Of the four wounds that Mitchell found during the autopsy, the three most severe were the large horizontal stab wound in the left side of the neck that nearly severed the carotid artery and sliced through the wall of the throat; the stab wound in the left side of the back that went between the ribs and punctured the spleen; and the stab wound to the left thigh close to the femoral artery. There was no evidence that Burkes was armed or fought back. Mitchell thought it likely that the stab wound to the neck and to the thigh could have occurred at approximately the same time, followed by a later stab wound to the spleen. Mitchell’s testimony supports the idea that at least one lethal blow was inflicted after Burkes was rendered helpless. In addition, the witnesses Gosling, Hernandez, and Maldonado testified that at least three men surrounded Burkes in the alley behind the liquor store. According to Hernandez, a man named Wetto got behind Burkes and was holding him when he was stabbed in the spleen.
The circumstantial evidence in this case supporting the inference of premeditation includes: (1) Navarro’s use of the knife, a deadly weapon; (2) testimony of Gosling, Hernandez, and Maldonado that Burkes did not provoke this confrontation; (3) Navarro’s attempt to cover up his involvement after the killing by instructing Maldonado to say she had not seen him that day; (4) Navarro’s declarations during the confrontation supporting the idea that the argument was over money; and (5) the testimony of eyewitnesses and the pathologist suggest that a lethal blow was inflicted by Navarro after Burkes was rendered helpless and at least one lethal blow was struck while a third party held Burkes in such a manner that he could not defend himself.
“The state of mind of a defendant and whether he or she acted with premeditation is an issue which the law reserves unto the jury, and the jury has the right to infer premeditation from the established circumstances of the case provided the inference is a reasonable one.” State v. Wimbley, 271 Kan. 843, 849, 26 P.3d 657 (2001) (citing State v. Cravatt, 267 Kan. 314, 329, 979 P.2d 679 [1999]). Here, a rational juror could reasonably have decided that Navarro was guilty beyond a reasonable doubt of premeditated first-degree murder. Thus, the court properly denied the motion for judgment of acquittal made by Navarro during trial and submitted the issue to the jury.
II. MOTION FOR MISTRIAL
Next, we consider whether the trial court abused its discretion when it denied Navarro’s motion for mistrial following Margaret Reisbcek’s testimony concerning Navarro selling drugs. “A trial court’s ruling on a motion for mistrial will not be disturbed absent a clear showing of abuse of discretion.” State v. Rodriquez, 269 Kan. 633, 640, 8 P.3d 712 (2000).
Reisbcek testified on behalf of the State at trial. The portion of her testimony which Navarro finds objectionable is contained in the following exchange:
“Q. Why the delay from the time she told you from ‘till the time you went and told the police?
“A. Because I fully believed her when she told me that he would hurt her if she said anything, fully believed her. She had bruises on her from where he used to beat on her.
“Q. And did she tell you that he did?
“A. That he beat on her?
"Q. Right.
“A. Yes.
“Q. And so that’s why you didn’t say anything at the time?
“[Counsel for Navarro]: Objection. She is leading the witness.
“THE COURT: All right, let’s not lead the witness. Sustained.
“Q. What changed your mind about coming forward?
“[Counsel for Navarro]: I would again object. It calls for speculation as to what changed [Maldonado’s] mind.
“[Prosecutor]: Not [Maldonado’s] mind, but what changed Margaret Reisbcek’s mind.
“THE COURT: All right, overruled.
“A. That changed my mind about going to the police?
“Q. Yes.
“A. [Navarro] was dealing drugs out of a house down the street.” (Emphasis added.)
Trial counsel for Navarro immediately approached the bench and moved for a mistrial, noting that the trial court had told the prosecutor to advise all the State’s witnesses not to mention anything concerning Navarro’s involvement in drug activity. In response, the prosecutor stated, “I didn’t mean to elicit testimony on the drug — the drug transaction. I think the Court can give the jury, can ask it to be stricken from the record.” The prosecutor further indicated that she had instructed the witness in accordance with the order in limine. The trial court then ruled as follows:
“THE COURT: There is evidence that the State’s witnesses have used drugs in the past and there is evidence that this particular incident involved a disagreement over a drug transaction. I am going to — I think the witness’ last remark was definitely improper. I am certainly giving you the benefit of the doubt, if you say you instructed her not to mention those things. I am going to overrule the motion for a mistrial, and I’m going to instruct the jury emphatically to disregard the last statement of the witness; and during the break I want you to instruct the witness not to mention anything of that nature again. If it would happen again, it may very well be grounds for a mistrial; but I think that with the cautionary instruction at this point, die damage is slight, if any. As I said, drugs are inextricably — excuse me are fundamentally involved widi the people diat are involved in this case so there is nodiing, anything new.”
“The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because . . . [prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.” K.S.A. 22-3423(c). The general rule is that an admonition to the jury normally cures the prejudice from an improper admission of evidence. State v. Humphery, 267 Kan. 45, 57, 978 P.2d 264 (1999). The defendant bears the burden of proving that he or she was substantially prejudiced. State v. Trotter, 245 Kan. 657, 661, 783 P.2d 1271 (1989). In addition,
“ ‘[t]he judge’s power to declare a mistrial is to be used with great caution, under proper circumstances, to insure that all parties receive a fair trial. When an event of prejudicial misconduct, the damaging effect of which cannot be removed by admonition and instruction, is presented to the jury, the trial judge should declare a mistrial. [Citation omitted.]’ ” Humphery, 267 Kan. at 57 (quoting State v. Chandler, 252 Kan. 797, 801, 850 P.2d 803 [1993]).
As the State notes, in the recent case of State v. Crume, 271 Kan. 87, 22 P.3d 1057 (2001), this court listed three factors which should be considered when determining whether a new trial should be granted because of a violation of an order in limine by the prosecution:
“First, was the prosecutor’s misconduct so gross and flagrant as to prejudice the jury against the defendant? Second, does the admission of the statement indicate ill will by the prosecutor? Third, is the evidence against the defendant so overwhelming there was little or no likelihood the prosecutor’s violation of the order in limine changed the result of the trial?” 271 Kan. at 102 (citing State v. Follin, 263 Kan. 28, 45, 947 P.2d 8 [1997]).
Here, the prosecutor indicated that she did not intend to elicit the response that she received from Reisbcek. Likewise, the record reveals no indication of ill will on the part of the prosecutor. Fur thermore, because three eyewitnesses placed Navarro at the scene of the fight and because his then girlfriend identified him as the one who stabbed Burkes, Reisbcek’s comment had little or no likelihood of changing the result of the trial.
Navarro cites the mug shot case of State v. Childs, 198 Kan. 4, 422 P.2d 898 (1967), as illustrative of the idea that even though the State did not know its question would elicit forbidden testimony, the State was not relieved of the prejudice caused by its witness. Childs, however, does not support the idea that the trial court should have declared a mistrial. Rather, in Childs, this court discussed the remedy of a motion to strike, stating:
“ “Where a proper question is asked, and an improper answer given, the only remedy of the aggrieved party is by motion to strike out. It is impossible for the court in advance to exclude an improper answer to a proper question. The propriety of the answer cannot, in the nature of things, be determined before it is given.’ ” 198 Kan. at 11 (quoting State v. Gray, 55 Kan. 135, 140, 39 Pac. 1050 [1895]).
Finally, Navarro cites the case of State v. Lewis, 238 Kan. 94, 708 P.2d 196 (1985), as authority for the proposition that some errors are so prejudicial that an admonition to the jury cannot cure the harm. In Lewns, the defendants were on trial for aggravated robbery. Prior to trial, the State’s expert witness, a KBI chemist, had prepared a written report stating there was no blood found on the buck knife found in one defendant’s car. After each defense attorney referred to the lack of blood in his opening statement to the jury, the expert witness testified that her examination of the knife showed the presence of blood. There, this court stated:
‘When an event of prejudicial misconduct, the damaging effect of which cannot be removed by admonition and instruction, is presented to the jury, the trial judge must declare a mistrial. In the present case, the State’s introduction of evidence, of which the defendants’ counsel were unaware and which destroyed the defense strategy, is such an event requiring a mistrial.” Lewis, 238 Kan. at 97.
Here, Navarro’s defense strategy was that he was not the person seen by eyewitnesses at the scene of the crime that night; he contended that instead, he was in Carol’s Place with his friend Wetto. Reisbcek’s testimony concerning Navarro’s possible involvement with drugs, while improper, did not destroy the defense strategy. In light of the evidence against Navarro, the statement of Reisbcelc did not substantially prejudice Navarro’s right to a fair trial.
III. ALLEGED PROSECUTORIAL MISCONDUCT
Navarro argues on appeal that the State engaged in three forms of prosecutorial misconduct during closing argument: “First, the State shifted the burden of truth to the defense to prove that there was not premeditation when Mr. Burkes was stabbed. Second, the State vouched for the credibility of Detective Lawson. Finally, the State mischaracterized the testimony of Dr. Mitchell.”
“Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant’s constitutional right to a fair trial.” State v. Pabst, 268 Kan. 501, 504, 996 P.2d 321 (2000) (citing State v. Sperry, 267 Kan. 287, 308, 978 P.2d 933 [1999]).
“ ‘Each case must be scrutinized on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the light of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error.’ ” State v. Lumley, 266 Kan. 939, 965, 976 P.2d 486 (1999) (quoting State v. Whitaker, 255 Kan. 118, 134, 872 P.2d 278 [1994]). “Specifically, ‘[i]n deciding the question of whether prosecutorial misconduct requires reversal, an appellate court determines whether there was little or no likelihood die error changed the result of the trial.’ ” Lumley, 266 Kan. at 959.
Navarro notes that his trial counsel failed to object to the complained-of prosecutorial misconduct. However, in State v. McCorkendale, 267 Kan. 263, Syl. ¶ 5, 979 P.2d 1239 (1999), this court stated:
“Kansas does not ordinarily apply the plain error rule, and reversible error normally cannot be predicated upon a complaint of misconduct by the prosecutor during closing argument where no contemporaneous objection is lodged.”
A. Claim of impermissible burden shifting.
The trial transcript reads as follows: “You have no proof that the defendant did not act intentionally. That means he didn’t take his knife out of his pocket and accidentally cut the victim on the leg, accidentally cut the [victim] on the neck, accidentally stab the [victim] in the spleen. I think that pretty much speaks for itself in this case.”
The State asserts that in this portion of closing argument, the prosecutor is trying to convey the idea that the killing was pur poseful or willful, not that Navarro failed to present any evidence of unintentional conduct. The State fails to cite any case law in support of its position. Navarro, however, cites State v. Banks, 260 Kan. 918, 927 P.2d 456 (1996), for the proposition that an isolated comment by the prosecutor preceded by a correct recitation of the burden of proof does not prejudice the defendant’s right to a fair trial.
This court in McCorkendale set forth a two-step analysis for allegations of prosecutorial misconduct:
“First, the appellate court must determine whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. This analysis commences with the holding that in criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence adduced. Second, the appellate court must determine whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against die accused and deny him or her a fair trial, requiring reversal.” 267 Kan. 263, Syl. ¶ 7.
Here, the statement of the prosecutor concerns the element of intent, not the issue of premeditation as Navarro stresses in his brief. It is clear from the remarks of the prosecutor that she wished to highlight the purposeful nature of the stabbing. It is also clear that Navarro had no duty to disprove that the killing was intentional. In a criminal trial, “ ‘[i]t is the duty of the Government to establish . . . guilt beyond a reasonable doubt.’ ” In re Winship, 397 U.S. 358, 362, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970) (quoting Leland v. Oregon, 343 U.S. 790, 802-03, 96 L. Ed. 1302, 72 S. Ct. 1002 [1952]). Indeed, Navarro would be entitled to a judgment of acquittal if the State failed to show that the murder was committed intentionally. “No man should be deprived of his life under the forms of law unless the jurors who try him are able, upon their consciences, to say that the evidence before them ... is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged.” Davis v. United States, 160 U.S. 469, 493, 40 L. Ed. 499, 16 S. Ct. 353 (1895).
Here, the trial court correctly instructed jurors that “[t]he State has the burden to prove the defendant is guilty.” In addition, the evidence against Navarro was strong. Because this particular state ment of the prosecutor is consistent with the evidence adduced, we hold that it did not prejudice the jury against Navarro, denying him a fair trial, and that it is not an exception to the clear error rule.
B. Claim that the State impermissibly vouched for the credibility of Detective Lawson.
Navarro claims that the second instance of prosecutorial misconduct occurred when the prosecutor stated in closing argument that Lawson was “pretty darn credible.” This particular remark is part of the prosecutor s discussion of the weakness of Navarro’s theory of defense that after he broke up with Maldonado she conspired to frame him:
“Nobody came forward voluntarily except [Reisbcek], [Maldonado] never came to the police, never. That’s a heck of a way to frame if she is so smart enough to know diat anytime, any day could come in there and frame him but she didn’t. The police found her. They came to her . . . .They just walked to this door and said: Are you Brandy Maldonado and she said no. Can we see an I.D. You are Brandy. Come with us. That’s how it happened. That’s how this Detective Lawson testified and he’s pretty dam credible.”
This particular remark of the prosecutor had little, if any, likelihood of changing the result of the trial. While the credibility of Maldonado and other eyewitnesses was a central issue for the jury to determine as it considered the charges against Navarro, the credibility of Lawson was not important. Therefore, we do not find that the remark was so gross and flagrant as to prejudice the jury against Navarro and deny him a fair trial, requiring reversal. Again, the comments are not clear error, and we need not consider the comments absent a valid objection.
C. Testimony of Dr. Mitchell.
Navarro claims that the prosecutor mischaracterized Mitchell’s testimony in a manner that painted the jury “a picture of a wounded Mr. Burkes being chased down by his assailants.” According to Navarro, the prosecutor mischaracterized Mitchell’s testimony when she spoke about the sequence of the stabbing, stating:
“You heard Dr. Mitchell’s testimony. He says, said the stabbing wound to the thigh — as you see in the picture had been bleeding. That means there was blood pressure. Now, he had clothes on, he had pants on and work boots. If he was stabbed there as the witnesses say, he had time to go down and possibly get away from his attacker. You couldn’t necessarily move if you have blood, if it was a stab wound there. And he has clothes. The doctor testified that it’s possible that he could have blood and it’s possible he could move with the blood. He made it at least to the alley. We know that, but he had to be pursued as he got to the mouth of the alley, that is when the stabber decided to cut his throat and his spleen. It’s all consistent with the doctor’s testimony, because the spleen as he said would normally bleed a lot, because it’s like a sac of blood. But it didn’t bleed a lot in this case, the blood pressure had to be lower. His throat had to be already cut. He was already stabbed and run down to the alley. His throat was slit. He was backing up. He was probably trying to get away again and the stab wound was back diere. (Indicating.)”
Again, we note that the trial court instructed the jury to ignore the remarks of counsel with no basis in the evidence. Navarro points out that this court previously stated: “No rule governing oral argument is more fundamental than that requiring counsel to confine their remarks to matters in evidence. The stating of facts not in evidence is clearly improper.” State v. Whitaker, 255 Kan. 118, 134, 872 P.2d 278 (1994).
While there was no evidence that the assailants chased Burkes down the alley and stabbed him again, the prosecutor s remarks concerning the sequence of the stab wounds was essentially correct. According to Mitchell, it was likely that the stab wounds to the neck and to the thigh could have occurred at approximately the same time, followed by the stab wound to the spleen. Further, the prosecutor’s commentary included words “it’s possible,” “if,” and “probably.” Therefore, a reasonable juror would understand that the prosecutor’s comments were theoretical, not a recitation of facts in evidence. Having failed to object, we do not give further attention to Navarro’s complaints concerning the prosecutor’s remarks on Dr. Mitchell’s testimony.
IV. JURY INSTRUCTIONS
Finally, Navarro contends that the wording of the jury instructions did not allow the jury to consider the lesser-included offense of second-degree intentional murder until after jurors rejected the charge of first-degree murder.
“When reviewing challenges to jury instructions, we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, tire instructions do not constitute reversible error even if they are in some way erroneous.” State v. Mitchell, 269 Kan. 349, Syl. ¶ 3, 7 P.3d 1135 (2000).
“ ‘No party may assign as error die giving or failure to give an instruction, including a lesser included crime instruction, unless die party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which die party objects and the grounds of die objection unless die instruction or die failure to give an instruction is clearly erroneous.” State v. Sandifer, 270 Kan. 591, Syl. ¶ 1, 17 P.3d 921 (2001).
An inspection of the trial record furnished by Navarro does not reveal any contemporaneous objection made by Navarro’s trial counsel. The State notes in its brief that Navarro’s counsel did not object to the jury instructions. An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, an appellate court presumes that the action of the trial court was proper. State v. Moncla, 262 Kan. 58, 68, 936 P.2d 727 (1997). Thus, because counsel for Navarro failed to object to the jury instructions at trial, no error may be predicated thereon on appeal.
Affirmed.
Allegrucci, J., concurs in the result. | [
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It Is Therefore Ordered that Stuart W. Gribble be and is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Stuart W. Gribble from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2001 Kan. Ct. R. Annot. 276).
Dated this 19th day of December, 2001. | [
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|
The opinion of the court was delivered by
Abbott, J.:
M.R., a 14-year-old juvenile, was found to be a child in need of care and placed in a group home. She refused to attend school or to perform court-ordered community service in lieu of school attendance. The district judge initiated indirect contempt proceedings and ultimately found M.R. to be in indirect contempt, placing her in a juvenile detention center during the day and confining her to the group home otherwise. At the contempt hearing, M.R. moved to dismiss the proceedings, arguing that the court lacked jurisdiction to find her in contempt. M.R. now appeals the court’s denial of her motion to dismiss.
M.R., her half brother, and her half sister came to Kansas from California. They had been in California foster care because of neglect and abuse by M.R.’s mother. M.R.’s stepfather was awarded legal guardianship of the children by the State of California. M.R. lived with her stepfather beginning in March 2000. The State of California closed its case file on November 21, 2000.
On January 17, 2001, Kansas Department of Social and Rehabilitation Services (SRS) worker Elizabeth Day filed an application for care and/or protective custody order concerning M.R. with the juvenile division of the District Court of Douglas County, Kansas. The specific facts alleged concerning M.R were:
“[M.R.] has been truant for much of the school year and is highly disruptive in school. School records indicate that [M.R.] has six (6) in-school suspensions; seven (7) out of school suspensions; three (3) unexcused absences and four (4) excused absences. She skipped school on January 2, 2001 and did not come home at the end of the school day. [Her stepfather] called her in as a runaway. She came into Police Protective Custody that same day and was placed at The Shelter. She was also referred to the Truancy Program because of this incident.
“A referral to Family Preservation services was made by SRS on January 5, 2001. [M.R.] returned home that day. She agreed to attend school and refrain from running. She skipped school on January 9, 2001. She ran from [her stepfather’s] house the next day, January 10, 2001. Early in the morning of January 13, 2001, [her stepfather] received an anonymous phone call telling him [M.R.] could be located at 3rd and California. He drove there and returned with [M.R.] to their home. [M.R.] was in the company of two other female juveniles and an adult male .... [She was] described ... as, ‘drunk, soiled and with “hickies” all over her.’ After returning to their home, [M.R.] described to her mother over the phone, sexual encounters with the adult male she was with at 3rd and California. [The adult male] has been arrested ....
“[t]he police [were called] after . . . the phone conversation between [M.R.] and her mother. [M.R.] was again placed in Police Protective Custody and placed at The Shelter.
“[M.R.] ran from The Shelter at approximately 2:05 p.m. on January 16, 2001. [She was] found . . . and [taken] to the Lawrence Police Station. She was placed in detention because of the extreme run risk. [Her stepfather] is unwilling for [M.R.] to return to his home at this point. Connie is not an option for placement because of her confirmed abuse of [M.R.] in California.”
On January 22, 2001, M.R. was adjudicated a child in need of care by the Honorable Jean F. Shepherd. Pursuant to K.S.A. 38-1543(g), M.R. was placed in temporary custody of Lawrence SRS, with placement at Kaw Valley Center. The court found that out-of-home placement would be in her best interest because her “running [away] and other behaviors make it impossible for [her] stepfather to maintain her safely at home; she engages in high-risk behavior when she runs.” The case plan included a provision for eventual reintegration into her stepfather’s home.
The court ordered that M.R. live at The Shelter, Inc. because she required “much more structure and supervision for her own safety Rian can be provided in family home, even with services.” In addition, the court ordered that M.R. attend summer school or perform 2 hours of community service work for each hour of school she missed.
Within days of the hearing, on May 4, 2001, Gina Meier-Hummel, a licensed social worker with SRS, wrote to the Douglas County District Court to inform the court that M.R. refused to perform community service as ordered. Elizabeth Fleske, a family support worker with Kaw Valley Center, filed an affidavit with the Douglas County District Court stating, in pertinent part:
“THAT [M.R.] was brought into the custody of Lawrence SRS and placed with Kaw Valley Center on January 17, 2001 in the above captioned case.
“THAT [M.R.] was originally placed in Hiawatha, Kansas on January 17,2001, where she ran from her placement. Upon her return to Lawrence, Kansas on March 12, 2001, [M.R.] was placed at The Shelter, Inc. in Lawrence, Kansas. [M.R.] was subsequently enrolled in Central Junior High School as a seventh grader.
“THAT [M.R.] began refusing to attend school, stating that she believes that there are persons at Central Junior High School who wish to do her harm. The Shelter, Inc. has attempted to have [M .R.] transferred to West Junior High School, but it has not yet been approved.
“That [at] [M.R.]’s Formal Hearing on April 30,2001, the court ordered [M.R.] to perform two (2) hours of community service work (CSW) for each hour of school that [M.R.] missed. That [M.R.] has continuously refused to attend school. That [M.R.] has continuously refused to participate in any CSW and, as of this date, she has yet to complete a single hour of CSW.”
On May 17, 2001, Judge Shepherd appointed advocate counsel to represent M.R. personally and filed an order to show cause why [M.R.] should not be held in indirect contempt of the court’s orders.
At the contempt hearing, counsel for M.R. moved for dismissal of the contempt proceedings, arguing that the court lacked jurisdiction to find the child in contempt. M.R. admitted the allegations in the affidavit, and the court found her in indirect contempt for failure to comply with the court’s orders. Judge Shepherd requested recommendations from counsel as to what would constitute an appropriate way for M.R. to purge herself of the contempt. After listening to recommendations, the court stated:
“At this time it will be the order of the Court that to purge herself of contempt [M.R.] be placed on house arrest to continue in her placement at The Shelter, and she is to attend the Day Detention School for summer school.
“If she is successful in the summer school program at the Day Detention School, then the Court recommends that she attend West Junior High School in the fall. But she needs to demonstrate that she can successfully participate in the school program.
“I will waive the community service work that has accumulated to date . . . because that would be an additional consequence to her.”
Judge Shepherd stated that she was entering the sentence pursuant to the court’s contempt authority in Chapter 20 of the Kansas statutes.
M.R. attended the Day Detention School from May 24, 2001, through July 13, 2001. July 13, 2001, was M.R.’s last day at the Day Detention School. A letter received by the court on July 13 from Meier-Hummel advised that
“[M.R.J’s 90th day at the Shelter is 7/15/01. On 7/15/01 she will then go to the Lingenfelser, 1926 Tennessee here in Lawrence for a temporary placement until she moves to a more permanent placement on 7/17/01 at the Bell residence. Ms. Bell lives at 3147 Douglas Road, Richmond, KS 66080.”
On July 19, 2001, M.R. was transferred from her foster home to the KVC West Shelter in Kansas City, Kansas, because of disruptive behavior.
The first issue for consideration is whether this case is moot. The State contends that because M.R. is no longer required to attend the Day Detention School, she has purged herself of the contempt and the case is moot.
Conversely, M.R. argues that the issues presented are not moot because there has been no order terminating her sentence. Furthermore, M.R.’s attorney asserts that she did not purge her contempt by attending summer school as ordered because she was removed from Day Detention School on July 13, while her summer school was scheduled to last until August 10, 2001. This argument seems disingenuous because M.R. was removed from the house and school because the time contracted for had expired.
“ ‘It is the duty of the courts to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles which cannot affect the matters in issue before the court.’ ” In re Appeal of Colorado Interstate Gas Co., 270 Kan. 303, 305, 14 P.3d 1099 (2000), citing Miller v. Sloan, Listrom, Eisenbarth & Glassman, 267 Kan. 245, 262, 978 P.2d 922 (1999).
“ ‘ “An appeal will not be dismissed as moot unless it clearly and convincingly appears the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the action are concerned.” [Citations omitted.]’ ” Shanks v. Nelson, 258 Kan. 688, 690-91, 907 P.2d 882 (1995).
On July 15, 2001, because The Shelter, Inc. had reached the maximum number of days under its contract to provide services for Kaw Valley Center, M.R.’s residency changed. M.R. was moved to a foster home, ran from it a few days later, then was summarily placed at Kaw Valley West campus. She remains there and attends West Middle School in Kansas City, Kansas.
Under K.S.A. 38-l503a(c), “[w]hen jurisdiction has been acquired by the court over the person of a child in need of care it may continue until the child: (1) Has attained the age of 21 years; (2) has been adopted; or (3) has been discharged by the court.” Therefore, because none of the listed conditions have been met, M.R. remains subject to the district court’s jurisdiction. Although M.R. is no longer subject to the court’s order regarding house arrest and Day Detention School, the district court has never specifically stated that M.R. has purged her contempt.
Looking carefully at the language used by the district court, we note that there was no specific time period stated to purge the contempt. The district court only required that she “be placed on house arrest to continue in her placement at The Shelter,” and that she “attend the Day Detention School for summer school.” The district court has taken no further action in regard to M.R.’s indirect contempt, giving rise to the inference that the district court considers the contempt purged. M.R. was released from house arrest and no longer must attend Day Detention School.
As will be seen later in the opinion, M.R. was found to be in civil and direct contempt. Based on the record before us, we cannot tell what M.R.’s present status is. We therefore remand the case to the trial court for a hearing to determine whether the issue is moot by reason of M.R. having purged herself of contempt or her contempt no longer being an issue and for the court to draw an appropriate order.
We have no difficulty in concluding the district court had the power to impose sanctions against a juvenile for indirect contempt. M.R. contends that there is no controlling precedent in either statute or case law giving the court the power to find a child in indirect criminal contempt and sentencing that child to physical detention in order to purge the alleged contempt.
M.R.’s arguments can be classified as a challenge to the district court’s judicial authority. Art. 2, § 1 of the Kansas Constitution provides that “judicial power is the power to interpret and apply the law to actual controversy.” State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 301, 955 P.2d 1136 (1998). “Courts in Kansas are vested with judicial power, which is the power to hear, consider and determine controversies between rival litigants.’ [Citations omitted.]” 264 Kan. at 337.
In State v. Jenkins, 263 Kan. 351, 950 P.2d 1338 (1997), this court discussed the basis of a district court’s power to impose sanctions for contempt of court. There, this court considered the inherent power to punish for contempt of court as an alternative to the statutory authority of a court to initiate contempt proceedings granted in K.S.A. 20-1201 et seq., and stated:
“The power to punish for contempt of court does not arise from legislative action, but is inherent in the court itself. [Citation omitted.] However, the practical effect is that no inherent power to punish for contempt exists in the district court in dependent of legislative regulation under K.S.A. 20-1201 et seq. If we were to hold otherwise, we would not only trespass on precedent but also endorse an unlimited inherent powers exception that could override regulation under K.S.A. 20-1201 et seq., thus creating an unbridled power in individual judges to impose punishment.” 263 Kan. at 355.
In Jenkins, we further explained that “[i]f the district court imposes sanctions for contempt of court, the procedure under K.S.A. 20-1201 et seq. regulates that power. No inherent power to punish for contempt exists independent of K.S.A. 20-1201 et seq.” 263 Kan. at 352. Thus, to impose a sanction against a contemnor, a court must follow the procedural requirements of K.S.A. 20-1201 et seq.
Here, Judge Shepherd stated that she was entering the sentence pursuant to the court’s contempt authority in Chapter 20 of the Kansas statutes. M.R. does not allege that the district court failed to follow the required procedures, so this issue need not be addressed.
A. Criminal versus civil contempt.
In Jenkins, this court stated:
“ ‘ “Civil contempt is the failure to do something ordered by the court for the benefit or advantage of another party to the proceeding.” [Citation omitted.] Criminal contempt, by contrast, is “conduct directed against the dignity and authority of a court or a judge acting judicially, with punitive judgment to be imposed in vindication; its essence is that the conduct obstructs or tends to obstruct the administration of justice.” [Citations omitted.]’ ” 263 Kan. at 358.
The State contends that the district court imposed sanctions for civil contempt, not a sentence for criminal contempt. We agree. Here, the sanctions imposed by the district court were clearly designed to coerce M.R. to comply with the court’s earlier order that she attend school. “Civil contempt is a remedial or corrective action meant to coerce a party into action. The party in contempt can be confined until the court-ordered action is performed.” 263 Kan. at 358. Therefore, this matter is a civil contempt.
In addition to the civil-criminal distinction, Kansas statutes divide contempts of court into two classes — direct and indirect. K.S.A. 20-1201. Direct contempts are those committed during the sitting of the court or of a judge at chambers. All others are indirect contempts. K.S.A. 20-1202.
K.S.A. 2000 Supp. 20-1204a applies to indirect contempt procedures in both civil and criminal actions. It states, in pertinent part, that “[i]f the court determines that a person is guilty of contempt such person shall be punished as the court shall direct.” K.S.A. 2000 Supp. 20-1204a(b).
“In a unique action of this type [contempt of court], we have a dual standard of review. We apply a de novo review to determine whether the alleged conduct is contemptuous. [Citation omitted.] We apply an abuse of discretion standard in reviewing the sanctions imposed. [Citation omitted.]” 263 Kan. at 356.
Fleske of Kaw Valley Center notified the court that M.R. continuously refused to attend school or to participate in any community service work. At the May 22 hearing, M.R. admitted that she had not gone to school or performed the community service work ordered by the district court for each hour of school she missed. M.R. does not challenge the district court’s finding that she acted in indirect contempt of the court’s order.
Reviewing M.R.’s conduct de novo, we find her conduct in indirect contempt of the district court’s order for her to attend school or to perform community service in lieu thereof. Furthermore, we find that the court did not abuse its discretion when it imposed the sanctions of house arrest and school attendance. The Kansas Code for Care of Children (KCCC) K.S.A. 38-1501, defines a child in need of care as a person less than 18 years of age who “is not attending school as required by K.S.A. 72-977 or 72-1111.” K.S.A. 38-1502d(a)(6). Considering M.R.’s history of truancy, running away, and engaging in other high-risk behaviors, the sanctions imposed by the district court were calculated to serve M.R.’s welfare and were in her best interest.
B. Imposition of contempt proceedings against a child.
As a general rule, statutes are construed to avoid unreasonable results. There is a presumption that the legislature does not intend to enact Useless or meaningless legislation. KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997). In resolving this issue, we turn to the KCCC.
“K.S.A. 38-1501 through 38-1593 shall be known as and may be cited as the Kansas code for care of children and shall be liberally construed, to the end that each child within its provisions shall receive the care, custody, guidance, control and discipline, preferably in the child’s own home, as will best serve the child’s welfare and the best interests of the state. All proceedings, orders, judgments and decrees shall be deemed to have been taken and done in the exercise of the parental power of the state. Proceedings pursuant to this code shall be civil in nature.” K.S.A. 38-1501.
If this court were to endorse the position taken by M.R. and hold that the district court could not impose the sanctions it did, the provisions of the KCCC would be rendered, to a large extent, meaningless. We are convinced the Kansas Legislature intended to grant the district court the authority to enforce orders entered in the best interest of a child in need of care, even through contempt proceedings, if necessary. Otherwise, children would be able to frustrate provisions for their care and welfare by petulantly declaring their refusal to cooperate with orders of the court. Therefore, we find that the district court had the power under 20-1201 et seq. to conduct contempt proceedings as it did.
The last issue for consideration is whether the passage of the KCCC allows a district court to impose the disposition of detention as a remedy for truancy. M.R. contends that under the KCCC, those children who commit crimes may be subject to punishment and detention, but that waywards, truants, and neglected children are not. M.R. asserts that treating truants as juvenile offenders is no longer allowed under the KCCC, and counsel for M.R. states that “no one counsel has spoken with can remember a truant being found in contempt and detained.”
The interpretation of statutory provisions presents questions of law over which our review is unlimited. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
Under K.S.A. 38-1594, “no child under 18 years of age shall be detained or placed in any jail pursuant to the Kansas code for care of children.” A jail is defined as: “(1) An adult jail or lockup; or (2) a facility in the same building or on the same grounds as an adult jail or lockup, unless the facility meets all applicable standards and licensure requirements under law.” K.S.A. 38-1502d(s).
The district court ordered that M.R. be placed under house arrest or detained in The Shelter where she was living. The Shelter does not meet the definition of a jail under the KCCC definition of the term, and, therefore, K.S.A. 38-1594 does not prohibit the court from imposing the sanction of detention in these circumstances.
M.R. also seems to contend that the KCCC prohibited her detention in the Day Detention School to force her to attend school because it is physically located in the Douglas County Juvenile Detention Facility,' which houses juvenile offenders.
We disagree. Because the Day Detention School is not an adult jail or lockup and is not located on the same grounds as an adult lockup facility, K.S.A. 38-1594 does not prohibit the court from, imposing the sanction of Day Detention School in order for M.R. to purge her indirect contempt.
Affirmed in part and remanded with directions.
Davis, J., not participating.
Brazil, Chief Judge Retired, assigned. | [
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|
The opinion of the court was delivered by
Lockett, J.:
Toisha P. Moody entered a guilty plea in 95 CR 1451 to one count of possession of cocaine with intent to sell. The date of the crime was June 10,1995. Moody was sentenced to serve 18 months in the custody of the Secretary of Corrections and sentenced to 36 months of postrelease supervision. Moody was placed on probation with Community Corrections for 36 months.
Moody later entered a guilty plea in Case No. 96 CR 1700 to one count of possession of cocaine and to one violation of the drug tax stamp statute. Those offenses occurred on December 8,1995. The parties recommended placement with Community Corrections, which would decide Moody’s specific placement. Moody was sentenced on April 3, 1997, to probation for 24 months and to 24 months postrelease supervision for the possession count, and to 24 months probation and 24 months postrelease supervision for the failure to possess a drug tax stamp count. The sentences for those counts were to be served consecutively. Those sentences were also to be served consecutive to the sentence in 95 CR 1451.
On October 16,1997, Moody admitted to violating the terms of her probation after a urine sample tested positive for cocaine use. Upon the recommendation of the parties, the district court judge reluctantly reinstated probation. Moody was to be supervised by Community Corrections and monitored electronically until residential space became available. On April 4, 1998, Moody’s probation was revoked after a drug test was positive for cocaine and the defendant admitted to marijuana use.
The Department of Corrections (DOC) placed Moody into Labette pursuant to K.S.A. 21-4603d(e) on January 20, 2000. The State filed a motion requesting that the district court declare K.S.A. 1999 Supp. 21-4603d(e) unconstitutional as it operated to violate the separation of powers doctrine and requested that Moody’s placement at Labette be set aside. The DOC intervened. At oral argument, the State mistakenly argued to the district court that K.S.A. 21-4603d(e) did not apply in 95 CR 1451 because the statute that amended section (e) to provide for placement at Labette was not effective until July 1, 1995.
The district court determined that the 1995 amendment to section (e) of K.S.A. 21-4603d was not in effect at the time the first offense was committed on June 10, 1995. The district court sustained the State’s motion as to 95 CR 1451 for the June 10, 1995 crimes. The court concluded that a subsequent statute authorizing placement at Labette could not be applied retroactively. The district court then found that portion of the statute which allowed the DOC to place a defendant under Community Corrections after completion of Labette, even though the district court had previously rejected the option, constituted a usurpation of the court’s power. The judge ordered that Moody remain in custody of the DOC until the 18-month sentence imposed in 95 CR 1451 and the remaining 23-month sentences imposed for each count in 96 CR 1700 had been served.
Effective Statutes
On April 7, 1995, the Kansas Legislature enacted Senate Bill 360, which amended K.S.A. 1994 Supp. 21-4603d(e). The amended section reads:
“(e) The secretaiy of corrections is authorized to make direct placement to the Labette correctional conservation camp of an inmate sentenced to the secretary’s custody if the inmate: (1) Has been sentenced to the secretary for a probation revocation or as a departure from the presumptive nonimprisonment grid block of either sentencing grid; and (2) otherwise meets admission criteria of the camp. If the inmate successfully completes the 180 day conservation camp program, the secretaiy of corrections shall report such completion to die sentencing court and the county or district attorney. The inmate shall then be assigned by the court to 180 days of follow-up supervision conducted by the appropriate community corrections services program. The court may also order that supervision continue thereafter for the length of time authorized by K.S.A. 21-4611 and amendments thereto.” L. 1995, ch. 121, § 1.
The amendment was to take effect and be in force after publication in the Kansas Register. L. 1995, ch. 121, § 7. The amendment was published and became effective on April 20, 1995. 14 Kan. Reg. 541 (1995).
On May 17, 1995, the Kansas Legislature enacted Senate Bill 222, amending K.S.A. 1994 Supp. 21-4603d, as it was amended by Senate Bill 360. L. 1995, ch. 257, § 1. This amendment did not change the language of section (e) of the previous April enactment but did change other provisions of K.S.A. 1994 Supp. 21-4603d concerning restitution. L. 1995, ch. 257, § 1.
The amendment was to take effect and be in force after publication in the statute book, July 1, 1995.
First, we note that section (e) of Chapter 121 of Laws of 1995, which became effective April 20, 1995, governs Moody’s crimes prosecuted in 95 CR 1451, committed on June 10, 1995. Chapter 257 of Laws of 1995, which became effective July 1,1995, governs Moody’s crimes committed on December 8,1995, and prosecuted in Case No. 96 CR 1700. The district court’s ruling to the contrary in 95 CR 1451 is incorrect. .
Constitutionality of Statute
The district court determined that K.S.A. 1999 Supp. 21-4603d(e) was unconstitutional. Moody’s crimes were committed on June 10, 1995, and December 8, 1995. The penalty for a crime is the penalty provided by statute at the time of the commission of the offense. State v. Martin, 270 Kan. 603, 608, 17 P.3d 344 (2001). The 1999 Amendments to K.S.A. 21-4603d(e) prescribe a punishment for a criminal act, are substantive in nature, and cannot be applied retroactively to inmates who committed crimes prior to the effective date of the amendment. See State v. Agosto, 271 Kan. 888, 27 P.3d 423, 424 (2001) (interpreting K.S.A. 1999 Supp. 21-4603d[e]). The 1999 amendments which the court declared unconstitutional were not in effect at the time that Moody committed her crimes; therefore, the district court lacked jurisdiction to consider the issues raised.
An appellate court has no jurisdiction to decide an issue which the district court lacked jurisdiction to decide. See State v. Parker, 23 Kan. App. 2d 655, 657, 934 P. 2d 987 (1997), rev. denied 262 Kan. 967 (1997). Because the issue of the constitutionality of K.S.A. 1999 Supp. 21-4603d(e) was not properly before the district court, the district court’s determination that K.S.A. 1999 Supp. 21-4603d(e) was unconstitutional is set aside. See Agosto, 271 Kan. at 891.
During oral argument, this court was informed that Moody is no longer subject to the Secretary of Corrections supervision. The district court’s oral finding that K.S.A. 21-4603d(e) was not in effect at the time that the crimes in 95 CR 1451 were committed is incorrect. The district court’s written ruling to set aside placement at Labette is incorrect. The district court lacked jurisdiction to find in both 95 CR 1451 and 96 CR 1700 that K.S.A. 1999 Supp. 21-4603d(e) was unconstitutional.
Because the district court did not specifically consider the 1995 amendments to 21-4603d and because Moody is no longer subject to supervision, we do not reach the constitutional issue as presented.
Appeal dismissed.
Davis, J., not participating.
Brazil, Chief Judge Retired, assigned. | [
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|
The opinion of the court was delivered by
Abbott, J.:
CPI Qualified Plan Consultants, Inc., Delaware (CPI), a successor employer under the Kansas Employment Security Law (Act), K.S.A. 44-701 et seq., applied for a transfer of its predecessor’s unemployment experience rating. The administrative hearing officer found the application untimely and denied the request. Upon judicial review, the district court reversed the agency’s final order. The Kansas Department of Human Resources (KDHR) appeals the district court’s reversal.
On August 24, 1998, CPI sold its business to a new company which kept the original name of CPI Qualified Plan Consultants, Inc. On May 4, 1999, John Cross, a certified public accountant for CPI, wrote a letter to KDHR requesting that it allow the transfer of the predecessor company’s unemployment experience rating to the new successor company. KDHR denied CPI’s request.
CPI initiated an administrative appeal of the decision. The basis for the appeal was that even though the successor employer was required to request the transfer within 120 days of the transfer of assets from the predecessor under K.S.A. 44-710a(b)(2), an exception for “excusable neglect” and/or “good cause” should be implied by law. On October 18, 1999, CPI sent a letter to Steven B. Lee, the hearing officer appointed to the matter, asserting that K.S.A. 44-710a(b)(4) applied because the successor employer was “not subject to this act” prior to the transfer of assets. On December 2, 1999, the hearing officer issued his final decision denying CPI’s request for a zero percent experience rating factor for unemployment tax. In that decision, Lee set out the following stipulated facts:
“CPI is a corporation operating in Kansas and has its principal place of business in Great Bend, Kansas. Its predecessor CPI Qualified Plan Consultants, Inc. began operations in Kansas in 1972 with three employees and has subsequently grown to 230 employees with an annual payroll in excess of $6,500,000.00. CPI currently does business with virtually all fifty states and receives ninety percent of its revenue from out of state clientele. The transfer of all or a substantial portion of the business belonging to the predecessor to the successor, CPI Qualified Plan Consultants, Inc. Delaware, occurred in the summer of 1998. In accordance with K.S.A. 44-710(a)(b)(2) [sic] the employer had until December 23, 1998, to make written request to the agency for transfer of its predecessor’s experience rating factor of zero percent. The employer made no contact with the agency subsequent to the transfer of assets until March of 1999, when it filed a ‘status report.’
“The employer failed to meet the 120 day filing deadline set forth in K.S.A. 44-710(a)(b)(2) [sic] as a result of being ‘unaware’ of the filing requirement and because of its reliance upon IRS REV. PROD. 96-60 which provides for payroll limitations on Social Security, Federal Withholding, and Federal Unemployment Tax to continue without change when all or a substantial portion of business assets are transferred from a predecessor to a successor employer. Based on that revenue procedure, the employer believed no filing and/or requesting was required by the State of Kansas and, as a result, the zero percent experience rating factor of its predecessor would continue as well.”
The hearing officer held that: (1) K.S.A. 44-710a(b)(2) was the controlling statute; (2) CPI met the definition of “successor employer” set forth in K.S.A. 44-703(h)(4) or (dd); (3) CPI had failed to comply with the statute and make a written request for a transfer of the rating withing the 120-day deadline; and (4) there was no “excusable neglect” and/or “good cause” exception to the 120 day filing deadline in the statute. Therefore, the hearing officer held that CPI “is not entitled by law to the zero percent experience rating factor of its predecessor . . . .”
Within the body of the final decision, the hearing officer also found that K.S.A. 44-710a(b)(4) did not apply to the case because the successor employer CPI was in existence at the time of the transfer; thus, the successor was subject to the Act.
CPI filed for judicial review of the administrative decision on December 10, 1999. In its petition, CPI stated that it “concedes, factually, that it did not make an application within one hundred twenty (120) days of the transfer of assets from the predecessor to the employer under K.S.A. 44-710(a)(b)(2) [sic], but affirmatively states that it was not required to do so pursuant to K.S.A. 44-710(a)(b)(4) [sic].” CPI contended that, as a matter of law, it was entitled to the experience rating of the business that it purchased.
On September 25, 2000, the district court conducted a pretrial conference. At that time, CPI and KDHR agreed to submit briefs and waive oral argument. The district court reviewed the parties’ briefs pursuant to the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. The district court specifically narrowed the scope of its review to a determination of whether the agency erroneously interpreted or applied the law pursuant to K.S.A. 77-621(c)(4). The court incorporated the findings of fact of the administrative hearing officer.
On November 29, 2000, in a memorandum decision, the district court reversed the decision of KDHR and ordered KDHR to award CPI the experience rating previously held by its predecessor. In its decision, the district court stated that “[t]he sole issue raised by this appeal is whether paragraph 2 or paragraph 4 of [K.S.A. 44-710a(b)] applies.”
The district court found that K.S.A. 44-710a(b)(4) established two methods for determining an employer’s rate of contribution. According to the court’s reasoning, the second method is found in the second sentence of K.S.A. 44-710a(b)(4), which states: “An employing unit which was not subject to this act prior to the date of the transfer shall have a newly computed rate based on the transferred experience rating factors as of the computation date immediately preceding the date of acquisition.”
Focusing on that particular language, the district court found that “the successor employer-plaintiff in this case squarely falls within the scope of being an employing unit ‘which was not subject to this act prior to the date of the transfer . . . .’” The district court stated that “[t]he Hearing Officer’s argument that (b)(4) does not apply suggests [CPI] is arguing the successor employer was not subject to the act prior to the date of transfer because [CPI] did not exist prior to the date of transfer. In [CPI]’s brief filed to support this appeal there is no suggestion that [CPI] relies on that reasoning.”
KDHR now appeals the district court’s judgment pursuant to K.S.A. 77-623 and K.S.A. 2000 Supp. 60-2103. The case is before this court pursuant to a K.S.A. 20-3018(c) transfer. KDHR asserts that the district court erred in its interpretation of K.S.A. 44-710a(b)(4).
This court has previously stated that in a case of judicial review of an agency’s decision, “where the facts in the case are undisputed, the applicability of a statute to the facts is a question of statutory construction to be determined by the court.” DSG Corp. v. Shelor, 239 Kan. 312, 315, 720 P.2d 1039 (1986).
“[T]lie interpretation of a statute by an administrative agency charged with the responsibility of enforcing the statute is entitled to judicial deference and is called the doctrine of operative construction. Deference to an agency’s interpretation is particularly appropriate when the agency is one of special competence and experience. [Citation omitted.]
“Although an appellate court gives deference to the agency’s interpretation of a statute, the final construction of a statute lies with the appellate court, and the agency’s interpretation, while persuasive, is not binding on the court. Interpretation of a statute is a question of law over which an appellate court’s review is unlimited. [Citation omitted.]” Matjasich v. Kansas Dept. of Human Resources, 271 Kan. 246, 250-51, 21 P.3d 985 (2001)
We first turn to the language of K.S.A. 44-710a(b)(4), which states:
“(4) If the acquiring employing unit was an employer subject to this act prior to the date of the transfer, the rate of contribution for the period from such date to the end of the then current contribution year shall be the same as the contribution rate prior to the date of the transfer. An employing unit which was not subject to this act prior to the date of the transfer shall have a newly computed rate based on the transferred experience rating factors as of the computation date immediately preceding the date of acquisition. These experience rating factors consist of all- contributions paid, benefit experience and annual payrolls.”
KDHR offers two possible reasons why the district court’s interpretation of K.S.A. 44-710a(b)(4) was erroneous. We wifi review them in the order presented.
A. Employing unit subject to the Act prior to the transfer of assets.
First, KDHR contends that because a newly formed corporate entity must list each of its officers, directors, and trustees at the time it registers with the Secretary of State, and because the listed personnel are considered employees, CPI was an employer subject to the Act prior to the transfer of assets from its predecessor. If CPI thus qualified as an employer that was subject to the Act prior to the date of transfer, the rate of contribution pursuant to K.S.A. 44-710a(b)(4) would be “the same as the contribution rate prior to the date of the transfer.” KDHR argues, however, that because CPI did not have an experience rating, 24 consecutive calendar months would have to pass during which benefits could be charged before it would qualify for an experience rating.
CPI’s position is that because it did not have employees or a payroll prior to the time that it purchased the assets of the old corporation, it was not subject to the Act at the time of the transfer of assets. CPI asserts that the purpose of K.S.A. 44-710a(b)(4) is to delineate a method of calculating an experience rating for a successor employer.
K.S.A. 44-710a(b)(4) states that “[a]n employing unit which was not subject to this act prior to the date of the transfer shall have a newly computed rate based on the transferred experience rating factors as of the computation date immediately preceding the date of acquisition.” Therefore, the first issue for this court to determine is whether CPI was an employer subject to the Act prior to the date of the transfer of assets.
“In construing statutes, legislative intent is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. The court must give effect to the legislature’s intent even though words, phrases, or clauses at some place in the statute must be omitted or inserted.” State v. Engles, 270 Kan. 530, 533, 17 P.3d 355 (2001).
In the definitions section of the Act, a “successor employer” means any employer “which acquires or in any manner succeeds to (1) substantially all of the employing enterprises, organization, trade or business of another employer or (2) substantially all the assets of another employer.” K.S.A. 44-703(dd). “Employer” means any “employing unit . . . which acquires or in any manner succeeds to . . . (ii) substantially all of the assets, of another employing unit which at the time of such acquisition was an employer subject to this act.” K.S.A. 44-703(h)(4)(A). An “employing unit” means “any individual or type of organization . . . which has in its employ one or more individuals performing services for it within this state.” K.S.A. 44-703(g). “Employment” means “[Sjervice, including service in interstate commerce, performed by (A) Any active officer of a corporation.” K.S.A. 44-703(i)(l)(A).
Therefore, by statutory definition, to be an employer subject to the Act prior to the date of the transfer of assets, the officers of the newly formed CPI corporation would have to be actively performing services for the corporation within the state of Kansas. CPI states that it was formed solely for the purpose of purchasing the assets of the selling corporation and did not have a payroll or employees in this state until it acquired the existing company.
Of interest to this court is the language in the statute prior to its amendment in 1983 that differentiated between an acquiring employing unit that “is or becomes an employer subject to this act immediately after such acquisition,” and “an acquiring employing unit that “was an employer subject to the act prior to the date of acquisition.” See L. 1983, ch. 169, § 5. With more clarity than is found in the new statute, the language of the old statute explained that (1) an entity with active employees that purchased another ongoing business was subject to the Act prior to the date of acquisition, but (2) an entity formed for the sole purpose of acquiring an ongoing business became subject to the Act immediately after such acquisition.
Therefore, this court finds that because CPI had no payroll or employees in this state until it acquired the predecessor company, CPI was not subject to the Act until immediately after the acquisition or transfer of assets. Thus, the district court did not err when it found that “the successor employer-plaintiff in this case squarely falls within the scope of being an employing unit which was not subject to this act prior to the date of the transfer ....’”
Furthermore, under K.S.A. 44-710a(b)(4), “[a]n employing unit which was not subject to this act- prior to the date of the transfer shall have a newly computed rate based on the transferred experience rating factors as of the computation date immediately preceding the date of acquisition.” The statute mandates that CPI “shall have” a rate based on the experience rating factors immediately preceding the date of acquisition. KDHR’s argument that CPI would not qualify for an experience rating for 24 consecutive calendar months fails because of this mandate.
B. Interpretation of K.S.A. 44-710a(b)(4) consistent with K.S.A. 44-710a(b)(2) and (b)(3).
The second reason offered by KDHR for finding error in the district court’s interpretation of K.S.A. 44-710a(b)(4) is that it would be inconsistent with subsections (b)(2) and (b)(3), and, therefore, the district court’s interpretation would contravene the legislature’s purpose in enacting subsection (b)(4). According to KDHR, the district court’s interpretation of the statute would render the requirements of subsections (b)(2) and (b)(3) meaningless and result in a successor employer receiving the predecessor’s experience rating automatically when the successor might not want it.
In support, KDHR observes that the legislature amended K.S.A. 44-710a in 1983 to include subsections (b)(1) through (b)(5). See L. 1983, ch. 169, § 5. KDHR asserts that prior to the 1983 enactment, a successor employer automatically acquired the experience rating of its predecessor. KDHR cites Centro Management, Inc. v. Kansas Dept. of Human Resources, 237 Kan. 369, 370, 699 P.2d 524 (1985). There, this court noted that “[i]f an employer was classified as a successor employer, the employer acquired the experience rating of the predecessor employer pursuant to K.S.A. 44-710a.”
KDHR argues that the scheme embodied in pre-1983 K.S.A. 44-710a sometimes resulted in the successor receiving a higher experience rating than the successor would have had if it had kept its own rating; to avoid that result, the legislature changed the statute to give “successor employers the option of applying for a predecessor’s experience rating instead of giving it to them automatically.”
This argument seems to be self-defeating, however, because if the intent of the legislature in changing K.S.A. 44-710a was to keep a successor from automatically receiving a higher experience rating, then logically, the district court’s decision allowing CPI to keep the lower rating of its predecessor is consistent with that intent.
CPI contends that, contrary to KDHR’s assertions otherwise, K.S.A. 44-710a presents varying situations where a successor must make an application to qualify for its predecessor’s experience rating or where a successor may choose not to apply for that rating. CPI argues that only employers presented with an option to elect the predecessor’s rating by the statute need to file an application.
“It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. [Citation omitted.] The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.] Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. [Citation omitted.]” In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
To determine whether the district court’s interpretation of K.S.A. 44-710a(b)(4) is inconsistent with subsections (b)(2) and (b)(3), and therefore contravenes the legislature’s purpose in enacting subsection (b)(4), this court must examine those subsections of the statute.
Under K.S.A. 44-710a(b)(l), whenever an employing unit ""becomes . . . or is an employer at the time of acquisition and meets the definition of a "successor employer’ . . . and is controlled substantially either directly or indirectly ... by the same interest or interests, [that employing unit] shall acquire the experience rating factors of the predecessor employer.” (Emphasis added.)
Under K.S.A. 44-710a(b)(2), a successor employer as defined in K.S.A. 44-703(h)(4) or K.S.A. 44-703(dd) “may receive the experience rating factors of the predecessor employer if an application is made to the secretary . . . within 120 days of the date of transfer.” (Emphasis added.)
Under K.S.A. 44-710a(b)(3), “[w]henever an employing unit . . . acquires or in any manner succeeds to a percentage of an employer’s annual payroll which is less than 100% and intends to continue the acquired percentage as a going business, (A) shall acquire the same percentage of the predecessor’s experience factors if the employer is controlled substantially ... by the same interest or interests or (B) may acquire the same percentage of the predecessor’s experience factors if: (i) The predecessor employer and successor employing unit make an application in writing . . . .” (Emphasis added.)
These subsections present several options for treatment of successor employers, depending upon the existence of several different factors, such as the acquisition of less than 100% of ownership of the predecessor, or successor ownership by substantially the same interests. K.S.A. 44-710a(b)(4) presents another set of factors. There, the statute differentiates between an “acquiring employing unit . . . subject to this act prior to the date of the transfer” and “[a]n employing unit which was not subject to this act prior to the date of transfer . . . .” KDHR’s argument that the district court’s interpretation of the statute renders subsections (b)(2) and (b)(3) meaningless fails.
The district court did not err when it found that K.S.A. 44-7l0a(b)(4) established two methods for determining an employer’s rate of contribution. We hold the district court correctly found that the successor employer-plaintiff in this case falls within the scope of K.S.A. 44-710a(b)(4); thus, the district court’s reversal of the agency’s decision and award to CPI of the experience rating previously held by its predecessor was not erroneous.
Affirmed.
Davis, J., not participating.
Brazil, Chief Judge Retired, assigned. | [
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|
The opinion of the court was delivered by
Larson, J.:
This is an appeal from the Workers Compensation Board (Board). Polly Webber, formehhhhhhhhhhhhhhhhhhrly Polly Schwarzkopf (claimant), received an eye injury during the course of her employment with Automotive Controls Corporation (ACC) and filed a claim for workers compensation. The administrative law judge (ALJ) awarded her 1% permanent partial general bodily disability, which she appealed to the Board; the Board increased her award to 15%. Respondent appealed to the Court of Appeals, which reversed the Board. We accepted claimant’s petition for review.
The facts are not in dispute, but the medical testimony is subject to different interpretations, which resulted in the Board and the Court of Appeals establishing different disability ratings.
Claimant helped build solenoids on an assembly line for ACC. In March 1997, a co-worker blew dust and chemicals into her eyes with a high pressure air hose. The company physician cleansed the eye with a saline solution and applied a patch. Claimant’s eye became worse, and she was sent to several other physicians who treated her. She eventually returned to work, performing the same duties she did prior to the accident.
At the time of the regular hearing before the ALJ in July 1999, it was stipulated that respondent admitted all issues except the nature and extent of claimant’s disability. Claimant testified that her right eye was often swollen and matted, especially in the morning, and she constantly had to use artificial tears to keep it moisturized. She said the bottom muscle was puffy and her eyelid had a constant “flutter” and sometimes had a “bigger twitch.” In a later deposition she introduced pictures taken before and after the accident that showed significant closure of the right eye. She said she has to turn her head to see through the left eye, and feels ugly and embarrassed about the condition.
Claimant was treated and evaluated by several ophthalmologists, including Dr. Terry Rothstein for an independent medical exam ordered by the ALJ, and Dr. Jeffrey Brick, who examined claimant at the request of her attorney.
None of the doctors could state with reasonable medical certainty that claimant experienced vision loss or deformity of the eye itself as the result of the accident.
Dr. Rothstein stated claimant had blepharospasm (spasm of the eyelids) in the right eye and hypertrophy of the right lower eyelid. A CT Scan showed hypertrophied muscle in the lower right fid. Dr. Rothstein concluded claimant’s condition was the result of voluntarily closing the eyelids. While admitting the cause of essential blepharospasm was generally unknown, he found no objective evidence to connect claimant’s condition to the work accident. He provided no functional impairment rating.
Dr. Brick’s examination of claimant showed the fissure or opening in her right eye was 4mm and her left eye was 8mm. He diagnosed claimant as having blepharospasm and dry eye based on the objective findings of his observation. When questioned about cause, he began his response hesitantly but stated there was an injury and that it is hard to say what sets off blepharospasm. He concluded: “But it seems as if the accident itself did start a chain of events which led to her having this blepharospasm.”
After testifying the incident at work caused the dysfunction in the tissue adjacent to the eye, Dr. Brick used the American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed. 1995), which did not address eyelid disfigurement but rather scarring of the skin, to rate claimant’s whole bodily functional impairment at 15%. This was the only rating in the record for the blepharospasm and hypertrophy.
Dr. Brick clearly stated in his deposition that all the opinions he had given were within a reasonable degree of medical certainty. He also answered affirmatively that the accident caused the condition based on the fact claimant did not have it the day before the accident and had it immediately afterward.
The ALJ found claimant had no visual impairment related to the accident but did agree and had observed during the hearing that there was hypertrophy of the lower eyelid. The ALJ found the injury was not within the statutes or AMA Guides but devised a remedy of 1% permanent partial general bodily disability.
Claimant’s appeal to the Board resulted in a finding that the greater weight of evidence established that claimant had blepharospasm and hypertrophy of the right eyelid. The Board concluded from the entire record that it was more probable than not that these conditions were caused by the work accident in March 1997. In that Dr. Brick was the only doctor to rate claimant’s disability, the Board adopted his finding and awarded claimant a 15% permanent partial general bodily impairment rating.
The Board ruled the evidence did not establish any reduced vision and held claimant was not entitled to benefits for that condition. In footnote 6, the Board stated: “Unfortunately, neither Dr. Brick nor any other witness specifically addressed the propriety of using the principles set forth in Chapter 9, Section 2, of the fourth edition of the AMA Guides, which deals with facial impairment.”
ACC appealed the Board’s decision. The Court of Appeals recognized the issue was whether there was a causal relationship between the accident and claimant’s current medical conditions and, after reviewing the evidence, held that substantial competent evidence did not support the Board’s conclusions: “Webber’s own expert could not testify with any degree of certainty that Webber’s eye condition was caused by her accident. Both of the experts stated that their objective findings did not support Webber’s subjective complaints. This kind of conjecture is not evidence which could be characterized as substantial and competent.”
We accepted claimant’s petition for review.
Our standard of review is critical in determining the issues we face. Our recent opinion of Griffin v. Dale Willey Pontiac-Cadillac-GMC Truck, Inc. 268 Kan. 33, 34-35, 991 P.2d 406 (1999), looked to Gleason v. Samaritan Home, 260 Kan. 970, 975-76, 926 P.2d 1349 (1996), and summarized our standard of review as follows:
“The 1993 amendments to the Workers Compensation Act specifically adopt the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., for workers compensation appeals. K.S.A. 1998 Supp. 44-556. . . . The determination of whether the Board’s findings of fact are supported by substantial competent evidence is a question of law. In workers compensation cases, substantial evidence is evidence possessing something of substance and relevant consequence and carrying with it fitness to induce conviction that the award is proper, or furnishing a substantial basis of fact from which the issue tendered can be reasonably resolved. The substantial competent evidence test reviews the evidence in the light most favorable to the prevailing party.
“Additionally, Kansas appellate courts have stated the following: The appellate court does not reweigh the evidence or determine the credibility of witness testimony. Guerrero v. Dold Foods, Inc., 22 Kan. App. 2d 53, 56, 913 P.2d 612 (1995).
“The appellate court will affirm the Board’s ruling absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. Bradford v. Boeing Military Airplanes, 22 Kan. App. 2d 868, 870, 924 P.2d 1263, rev. denied 261 Kan. 1084 (1996).
“The Board has the power to review both questions of law and fact. The Board’s determination is then appealable to the Court of Appeals, which is limited to reviewing questions of law in accordance with the KJRA. Nance v. Harvey County, 263 Kan. 542, 551, 952 P.2d 411 (1997).
“Summarizing, tire Board reviews questions of law and fact. The appellate court reviews questions of law. Whether a decision is supported by substantial competent evidence is a question of law. The appellate court does not reweigh the evidence or determine the credibility of the witnesses.”
We first hold that claimant’s argument that causation may not be questioned because the respondent stipulated the only issue was “nature and extent of disability” is incorrect.
While the stipulations did not follow the precise language required by K.A.R. 51-3-8 relating to pretrial stipulations, the question of whether claimant’s present conditions were due to the accident was constantly addressed by claimant’s own testimony and in the depositions of Dr. Rothstein and Dr. Brick. Dr. Brick’s testimony supports claimant’s contentions, Dr. Rothstein’s did not, but causation was in issue; as the Board stated: “[Respondent contends that claimant did not prove that either the alleged blepharospasm or loss of visual field are related to the March 1997 accident.”
Although we will, as the Board did, resolve the issue of causation in claimant’s favor, we agree with the respondent that when only the nature and extent of disability is questioned by a respondent, it has not forfeited the right to claim that the accident which was admitted did not cause the disability which is claimed.
A review of the facts, the testimony of the claimant, the depositions of the doctors, and the observations of the ALJ shows that the injury to claimant was caused by the accident of March 1997 and was supported by substantial competent evidence and not mere conjecture.
Both Dr. Brick and Dr. Rothstein agreed that claimant had blepharospasm in her right eye. A CT scan revealed atrophy in the lower right eyelid. Dr. Brick’s examination clearly revealed the condition to exist in January 1999. Dr. Rothstein would not conclude that the condition continued, but that testimony is contrary to the claimant’s and Dr. Brick’s. As we said in establishing our standards of review, we do not reweigh evidence or determine credibility of witness testimony, Griffin, 268 Kan. at 34, and further, findings supported by substantial evidence will be upheld by an appellate court even though evidence in the record would have supported contrary findings. Copeland v. Johnson Group, Inc., 26 Kan. App. 2d 803, 806, 995 P.2d 369, rev. denied 269 Kan. 931 (1999).
Sufficient evidence also supports that the March 1997 accident caused claimant’s blepharospasm. Claimant’s testimony supports this finding, and we have said that medical evidence is not essential to establish such facts. Graff v. Trans World Airlines, 267 Kan. 854, 864, 983 P.2d 258 (1999). Additionally, Dr. Brick stated several times that it was his belief that the accident was the cause of her present condition. The Court of Appeals reads out of context the beginning of an answer by Dr. Brick: “I don’t know that I formed a reasonable opinion on that.” Dr. Brick went on to give a sufficient opinion and clearly stated his opinion was within a reasonable degree of medical certainty. His testimony was sufficient competent evidence, as was found and held by the Board,
The record reflects, when read as required by our standards of review, that the Board’s findings and decision were supported by substantial competent evidence. The Court of Appeals erred in reversing the Board’s decision.
The Court of Appeals decision is reversed. The Board is affirmed. | [
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|
The opinion of the court was delivered by
Abbott, J.:
This is an appeal by the defendant, Kenneth A. Gardner, from his convictions of premeditated first-degree murder, aggravated robbery, aggravated burglary, and arson. Gardner was given a controlling sentence of life imprisonment plus 130 months without the possibility of parole for 25 years. On March 6, 1998, this court affirmed Gardner’s convictions.
Gardner filed a motion for a new trial based on newly discovered evidence and, in the alternative, ineffective assistance of counsel. The trial court denied the motion and Gardner appealed.
The underlying facts of Gardner’s conviction are described in detail in State v. Gardner, 264 Kan. 95, 955 P.2d 1199 (1998). The facts will not be set forth again except as necessary in discussing the issue involved.
The murder took place on May 1, 1995. Counsel contends that he had learned that the State found evidence, including fragments of a bullet buried in the floor, at the scene of the crime a day or two after the murder, and that this information had never been revealed to Gardner or his counsel and was not brought out at trial.
Fragments of a bullet had been recovered by the State from the floor after having gone through a carpet, pad, and into the wooden floor. Fragments of a bullet had also been recovered from inside the victim’s head at the time of the murder. The victim’s uncle, who owned and lived at the residence, called the police. A detective came out, removed the fragments from the floor, cut out a portion of the carpet and pad, and recovered a couch from a dumpster because the bullet had gone through the couch. The police took possession of the couch, pad, carpet, and fragments of the bullet.
By the time Gardner filed his motion, the evidence was no longer available. The record indicates that the county attorney’s office returned some of it to the victim’s family and anything remaining was destroyed sometime after May 11,1998, after Gardner’s direct appeal had been completed.
Defense counsel admitted that he may have seen the bullet fragments and reports showing they had been removed. His theory was that he was not shown the items because he did not recall seeing them, but that if he did see them it was ineffective assistance of counsel not to have raised it at the trial. The detective who removed the fragments from the floor was not called as a witness, and no one testified concerning the appearance of the fragments or expressed any opinion as to what size projectile they came from. The report is of no help in establishing anything other than that bullet fragments were recovered from the floor and that there was a bullet hole in the couch. There is no evidence to connect the bullet hole in the couch to the bullet fragments found in the floor. As a result, it is sheer speculation whether the fragments found their way into the floor at the same time the victim was murdered. No one claims that the fragments touched the victim in any way.
The district attorney testified that it was his practice to allow defense counsel access to the entire prosecution file and that he initialed everything the day he received it. The district attorney stated: “I know that I did not receive any additional police reports after this case was tried.” It was his opinion that the report was in the file showing that fragments of a bullet had been recovered from the floor and would have been in the file for the defense to view.
At the initial hearing, there was no evidence to show that the fragments were material to the case. Insufficient evidence was offered at the hearing to show ineffective assistance of counsel. Despite that fact, the trial judge gave Gardner additional time to investigate and prepare evidence.
A few days short of a year later, a second hearing was held on Gardner s motion for a new trial.
At the second hearing, the trial court denied the motion on several grounds, one of which was that it was not material and there was no reasonable assumption that the results of the trial would have been different had the evidence been presented by Gardner. The trial court said: “All of the arguments that I think you would have made could have been countered, as the State has mentioned, simply by them using the overwhelming circumstantial evidence they had against your client that put him at the scene, in possession of property, and behind the wheel of the truck that was the victim’s.”
On appeal, Gardner dropped his allegation of newly discovered evidence and relied solely on ineffective assistance of counsel.
In Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), the United States Supreme Court set forth a two-part test for ineffective assistance of counsel. Neither prong of the Strickland test is met under the facts of Gardner’s case. That test is described in Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985); first, the defendant must show counsel’s representation fell below an objective standard of reasonableness, and second, there must be a reasonable probability that, but for counsel’s errors, the outcome of the trial would have been different. 236 Kan. at 656-57.
Regarding counsel’s representation, the record is not clear as to whether Gardner’s counsel overlooked the report on the second bullet or simply decided that the second bullet was inconsequential. It would have been reasonable for the defense attorney to make the strategic decision not to present evidence of the second bullet at trial because there is no way to tell whether it would have helped in Gardner’s defense or would have instead demonstrated premeditation. As for the second part of the test, Gardner’s counsel stated, “I guess I can’t really argue that it would have made a difference to the jury because I don’t know what it would have revealed.” There is no showing that the defendant was prejudiced by his counsel’s failure to present the evidence of the second bullet, and, consequently, he was not denied effective assistance of counsel.
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Per Curiam,-.
This is a contested attorney discipline case filed by the office of the Disciplinary Administrator against the respondent, Larry W. Wall; an attorney admitted to the practice of law in the State of Kansas. All exhibits were admitted by agreement of counsel. Other evidence was submitted by stipulation. Respondent was the only witness.
The Hearing Panel concluded that the respondent violated Kansas Rules of Professional Conduct (KRPC) 1.3 (diligence) (2001 Kan. Ct. R. Annot. 323), KRPC 1.4(a) (communication) (2001 Kan. Ct. R. Annot. 334), KRPC 1.15(a) (safekeeping properly, separate account) (2001 Kan. Ct. R. Annot. 376), and KRPC 1.15(b) (safekeeping property, promptly deliver funds). The panel recommended public censure.
Findings of Fact
The respondent takes exceptions to three of the panel’s findings of fact and conclusions of law. The panel’s findings are as follows (those findings and conclusions to which the respondent takes exception are marked with an asterisk):
“The Disciplinary Administrator and the Respondent stipulated to the following facts:
“1. Larry W. Wall is an attorney at law .... His last registration address with the Clerk of the Appellate Courts in Kansas is [in] Wichita, Kansas ....
“DA7956 (Complaint of Katha Helms)
“2. On October 1,1997, Katha J. Helms was severely injured in an automobile accident when her automobile left K-99 Highway at a bend between Howard and Severy, Kansas.
“3. As a result of this accident, on June 7,1999, Helms retained Greg Lower as her attorney.
“4. On July 15, 1999, Lower wrote to Helms telling her that he intended to refer her case to Wall. Lower asked Helms to sign a copy of the letter and return it to him if she agreed to the referral.
“5. On July 15, Lower spoke to Wall concerning Helms’ accident and injuries and advised Wall that he planned to recommend to Helms that her case be referred to Wall for representation.
“6. On July 16, 1999, Lower wrote to Wall that Helms had orally agreed to the referral.
“7. On August 23, 1999, Lower forwarded Helms’ written approval of the referral and Lower’s office file to Wall. The file contained the investigation report on Helms’ accident, nine other auto accident investigation reports occurring in the same general area as Helms’ accident, and several letters concerning requests for accident investigation reports to and from various law enforcement agencies, among other things.
“8. On October 2, 1999, the [sjtatute of [Ijimitation had run in Ms. Helms’ case.
“9. Prior to the referral of the case to Wall, Lower spoke with Jay Pfeiffer, an engineering expert, about investigating the accident.
‘TO. On November 10, 1999, Steve Bough, an attorney in the firm of Sham-berg, Johnson & Bergman, telephoned Wall’s office inquiring about the Helms case. Bough left a telephone message for Wall.
“11. On reading the telephone message, Wall discovered that the [sjtatute of limitations had run on Helms’ claim.
“12. On December 20, 1999, Steve Bough telephoned Wall again inquiring about the Helms case.
“13. On January 14 and February 28, 2000, Lynn Johnson, a partner in the firm of Shamberg, Johnson & Bergman, wrote to Wall about the Helms case.
“14. On February 22, 2000, Wall told Lower that Wall had missed the statute of limitations in Helms’ case.
“15. On February 23, 2000, Wall wrote to Helms stating that the statute of limitations had run in her case and that she could file a claim against him with his malpractice carrier.
“16. Helms did not receive Wall’s letter of February 23,2000, because Helms had moved and was no longer using the post office box address she provided to Lower.
“17. On May 15, 2000, Lynn Johnson again wrote to Wall inquiring about Helms’ case.
“18. On June 19, 2000, Helms called Lower. During their telephone conversation, Helms learned for the first time that the statute of limitations had run in her case.
“19. On June 19, after Helms spoke to Lower, Helms telephoned Wall. Wall was not available and Helms left a message for him.
“20. On June 23, 2000, Wall returned Helms’ telephone call. This telephone conversation was the first personal contact that Wall had with Helms since accepting the referral of her case in July, 1999.
“21. On June 23, 2000, Helms filed a complaint with the Disciplinary Administrator.
“22. On July 6, 2000, Wall sent a copy of his February 23, 2000, letter to Helms as his response to Helms’ complaint. [We note that the letter in the record is dated February 23, 1999.]”
“DA7472 (Complaint of Charles Wall)
“23. Erma B. Wall, a widow, died on January 23, 1998. Erma B. Wall had two children who survived her: Larry Wall [respondent] and Charles Wall.
“24. Wall drafted his mother’s will. Wall was the executor under his mother’s will.
“25. After their mother’s death, Wall and his brother decided not to probate their mother’s will because of the value of the estate.
“26. Under the provisions of Mrs. Wall’s will, Wall and his brother were to share equally in the estate. Additionally, a statement signed by Mrs. Wall and attached to her will provided for specific personal property bequests to the two brothers.
“27. On January 23, 1998, three days subsequent to his mother’s death, Wall opened a non-interest bearing checking account in his sole name'and, using a power of attorney, transferred a $4,288.70 certificate of deposit owned by his mother, $1,846.32 from his mother’s checking account, and $1,618.87 from his mother’s savings account into the new account. In subsequent months, Wall also collected other monies coming from his mother’s death and deposited those in that non-trust and non-interest bank account.
“28. The bank account opened by Wall was not labeled as a trust account, but no other money was commingled with the money from his mother’s estate. Some money in the account was used to pay Mrs. Wall’s funeral expenses, to pay her outstanding debts, and to pay the costs of preparing Mrs. Wall’s house for sale. Wall did not withdraw any money from that account for his personal use until all the remaining money in the account was divided between Wall and his brother. None of the money in the account was misused or misappropriated by Wall.
“29. Wall caused a quitclaim deed dated January 4,1998, to be filed with the Office of the Register of Deeds. The deed conveyed his mother’s house and property to Wall and his brother. The deed was recorded 3 hours and 29 minutes after Mrs. Wall’s death on January 23,1998. Mrs. Wall did not sign the deed. Wall does not remember whether he signed the quitclaim deed for his mother, but Wall did have a durable power of attorney that permitted him to do so prior to her death.
“30. Within a few months after Mrs. Wall’s death, Wall and his brother each received his share of their mother’s personal property and his share of the proceeds from the sale of their mother’s house. Sometime during the period of June 1998, to July 2000, Charles Wall and his attorney made demands for Charles Wall’s share of the money held by Wall in the segregated bank account.
“31. On July 17, 2000, sixteen months after the death of Erma B. Wall and following questioning of Wall during an investigation of an ethical complaint made by Charles Wall, Wall distributed to Charles Wall his share of the money held in the checking account. The amount sent to Charles Wall was $1,749.80, which included a small amount of interest. The check was accompanied by a letter from Larry Toomey, who was representing Larry Wall, and a document prepared by Toomey that was an accounting of Mrs. Wall’s property.
“32. On July 26, 2000, Toomey again wrote to Charles Wall sending him an additional $666.99 representing 10 percent annual interest on his share of the remaining money from the bank account and a credit for a copying expense previously charged equally to Larry Wall and Charles Wall.
“C. STIPULATED VIOLATIONS
“The respondent stipulated that his conduct violated the following rules:
“Rule 1.3, Diligence. By missing the statute of limitations in the Helms case, Respondent was not diligent.
“Rule. 1.4, Communication. By failing to communicate with Ms. Helms, the Respondent violated Rule 1.4(a).
“Rule 1.15 (a). Safekeeping Property. Respondent violated Rule 1.15(a), dealing with the safekeeping of property, by not identifying as a trust account the account into which he deposited his mother’s funds. “Respondent also stipulated to a violation of Rule 1.15(b), in that funds from the house closing upon the sale of his mother’s house were not promptly delivered to the Respondent’s brother.
“D. CONCLUSIONS OF LAW
“Based upon the Respondent’s stipulations in the above findings of fact, the hearing panel concludes that the Respondent violated Kansas Rules of Professional Conduct 1.3, 1.4(a), 1.15(a) and 1.15(b), as follows:
“1. Attorneys must act with reasonable diligence and promptness in representing their clients, as required by KRPC 1.3. In the Katha Helms complaint, Respondent received the files and materials in sufficient time for him to act to avoid the tolling of the statute of limitations. Respondent’s failure to act with reasonable diligence and promptness resulted in the barring of any claim which Katha Helms may have had for recovery.
“2. Lawyers are required to keep clients reasonably informed about the [status] of the matter handled by the attorney, as required by Rule 1.4. Respondent failed to communicate with Katha Helms following the receipt of her file, and it was not until sometime following the lapse of the statute of limitations that Respondent finally communicated with his client, and such failure of communication constituted a violation of Rule 1.4(a).
“3. Lawyers are required to hold the property of clients or third persons that is in a lawyer’s possession in connection with the representation separate from the lawyer’s own property. The client’s property is to be identified and appropriately safeguarded. Respondent failed to identify the account as a trust account and maintained the account solely in his own name.
*“4. Upon receiving funds or other property in which a client or third party has an interest, a lawyer is required by Rule 1.15(b) promptly to notify the client or the third person. Respondent failed to notify his brother and failed to pay his brother’s share of the funds from the sale of their mother’s house in a prompt fashion.
“The Disciplinaiy Administrator urges that Respondent additionally violated Rule 8.1(a) by knowingly making a false statement of material fact and Rule 8.4(c), by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, both relating to a letter written by the Respondent which the Disciplinary Administrator argues states that Katha Helms’ file was sent to another lawyer for handling. The panel is not persuaded by the evidence and therefore declines to find that Respondent’s conduct violated either Rule 8.1 or 8.4.
“Respondent stipulated that he used a power of attorney, following his mother’s death, to obtain the transfer of funds from his mother’s accounts over to a new bank account established by the Respondent. Respondent also testified that subsequent to his mother’s death he used the same power of attorney to transfer title to a motor vehicle to his brother. Under Kansas law, a power of attorney terminates upon the death of the principal, and upon the death of the principal, the attorney in fact has no authority whatever to act as agent on behalf of the principal. The panel is of the opinion that Rule 4.1, Truthfulness in Statements to Others, may have been violated by this conduct by Respondent. Rule 4.1 states that in the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person or fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a fraudulent act by a client. In using the terminated power of attorney to transfer the funds and obtain the transfer of the motor vehicle title, Respondent arguably violated Rule 4.1. For reasons more fully explained in its recommendations, the panel declines to find a violation of Rule 4.1.
“E. RECOMMENDATIONS
“The Disciplinary Administrator urges the panel to discipline Respondent by a definite suspension from practice, followed by suspension of that discipline pursuant to the terms of a proposed written plan of probation submitted by the Respondent at the time of hearing. The Respondent through counsel urges that the discipline imposed should be a suspension of imposition of discipline for a period of two years to determine whether Respondent abides by the terms of his proposed written plan of probation.
“In the Katha Helms complaint, Respondent missed the statute of limitations, and the panel finds that Respondent at all times has admitted that error. The evidence indicates that the missing of the statute of limitations was a mistake caused by how the Respondent’s calendar system was maintained. The panel finds that the mistake was not caused by lack of diligence or disregard for a client matter by the Respondent. The panel is of the opinion that lawyers can make mistakes which may constitute malpractice and subject the attorney to a potential claim for damages without those mistakes constituting a violation of the Kansas Rules of Professional Conduct. The panel expresses no opinion as to whether it would have found a violation of Rule 1.3 in the absence of stipulation by the parties, but in view of the stipulation of the parties, the panel accepts the stipulation of violation of Rule 1.3.
“With respect to the violation of Rule 1.4, lack of communication, the panel is of the opinion that the lack of communication was at least in part caused by the mistake made when the matter was fixed on Respondent’s calendar. There is no suggestion that the Respondent ignored or failed to communicate with Katha Helms, other than by virtue of the mistake that led Respondent to believe he had many months to work on Respondent’s case. The panel therefore accepts the stipulated violation of Rule 1.4 without expressing an opinion as to whether it would independently have found a violation.
“The violations of Rule 1.15 are troubling because the violations show the all-too-frequent pattern of a lawyer who has confined his practice to an area of narrow specialization and then upon the death of a close relative seems to believe that he is qualified to act with respect to the decedent’s estate. The evidence did not so indicate in clear language, but inferences could be drawn from Respondent’s testimony that he may have been unaware that his mother’s durable power of attorney terminated upon her death. Similarly, Respondent appeared ignorant about the handling of his mother’s funds. Respondent testified that his mother’s estate represented the only will which he had drawn and the only estate which he handled, and the truth of those statements was confirmed by Respondent’s inept attempts to deal with and handle the estate. Respondent attempted to practice in an area in which he was unfamiliar, and as a lawyer with 30 years of experience he should have known that.
“In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Rar Association in its Standards for Imposing Lawyer Sanctions (hereafter ‘Standards’) as follows: Rule 4.14 deals with failure to preserve a client’s property and states, ‘Admonition is generally appropriate when a lawyer is negligent in dealing with client property and causes little or no actual or potential injury to a client.’
“Standard 4.43 deals with lack of diligence and states, ‘Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.’
“Matters in Aggravation
“a. Prior Disciplinary Offenses. Respondent was previously disciplined January 12, 2001 for a violation of Rule 5.1, Responsibilities of Partner or Supervisory Lawyer.
“b. Pattern of Misconduct. Both of these matters occurred about the same time and constitute a pattern.
“c. Multiple Offenses. There were multiple offenses of the KRPC.
*“d. Vulnerability of Victim. Katha Helms, as the victim of a serious personal injury, was obviously incapable of handling restitution and compensation on her own behalf and was therefore vulnerable.
“e. Substantial Experience in the Practice of Law. As a practitioner with more than 30 years of experience, Respondent is experienced in the practice of law.
“Matters in Mitigation
“a. Absence of Dishonest or Selfish Motive. The panel finds that there was no dishonest or selfish motive.
“b. Personal or Emotional Problems. The panel finds that during this period of time Respondent was undérgoing martial difficulties, he was obviously upset by his mother’s death, and he was suffering from alcoholism.
“c. Cooperation During Hearing. The Respondent appeared cooperative at the hearing, and the panel was advised by the Disciplinary Administrator that Respondent has been cooperative throughout the disciplinary proceeding.
“d. Mental Disability or Chemical Dependency. Respondent was suffering from alcoholism.
“e. Remorse. Respondent exhibited] remorse at the time of the hearing which tire panel believed was genuine.
“Additionally, the panel finds that with respect to the Wall complaint, there was no harm caused by Respondent’s conduct. Previous family disagreements and feuds may have contributed both to the action of the complainant and to Respondent’s response to his brother’s demands, which would be unlikely to affect Respondent’s practice of law as regards unrelated third parties. With respect to the complaint of Katha Helms, there was evidence to the effect that Ms. Helms’ personal injury action might not have been a valid claim; suffice it to say that to the extent Ms. Helm’s action may have been successful, she would appear to have an action against Respondent for malpractice.
“It is the recommendation of [the] hearing panel that Respondent be disciplined by public censure.
“Costs are assessed against the Respondent in such amount as shall be certified by the Office of the Disciplinary Administrator.”
The following was added to the panel’s report:
“ADDENDUM TO FINAL HEARING REPORT
“This hearing on this matter was held March 9, 2001. The preliminary draft of the hearing report was completed and circulated to the panel members for comment on March 14. The final draft was completed and sent for signature on March 23.
“On March 15, six days following the hearing and after the preliminary draft of the hearing report had already been mailed, the panel received two letters submitted by the Respondent, apparently intended as part of his evidence in mitigation.
“On March 29, the panel received some 15 additional letters, ranging in date from March 14 through March 27. These letters were also apparently submitted as further evidence in mitigation.
“The panel wishes to make two points regarding the submission of materials following the close of hearing:
“1. Permission and Date. Permission should be obtained by a party prior to the close of the hearing to submit anything into evidence, whether in mitigation or otherwise, subsequent to the close of the hearing. A firm date should also be fixed by which time all documents to be submitted will be received by the panel. The panel has tried to be prompt in rendering its opinion; the panel now received two separate mailings of matters in mitigation, and as the result the panel has been required to review these matters and reconsider the evidence submitted in mitigation.
“In the present matter, the panel still does not know whether it has received all of the matters in mitigation which the Respondent wishes to submit. The panel does not regard it as being in the best interest of any Respondent for the panel to hold up indefinitely on rendering its written opinion with the expectation that someday the Respondent may wish to submit further evidence in mitigation.
“2. Deliberative Nature of Opinion. The Board of Discipline for Attorneys is intentionally structured by our Supreme Court to sit in deliberative bodies of three to hear the evidence and to reach a deliberative decision based upon the counsel of all three of the members. Following the conclusion of hearing, panel members meet to deliberate and express their ideas and opinions and arrive at a reasoned conclusion that represents the judgment of all three panel members. Panel members set aside time for this purpose so that undivided attention can be focused on the evidence presented at die hearing.
“The benefit of this deliberative process is defeated by Respondents who submit documents to the panel members following the conclusion of the hearing.
“To enable the deliberative nature of the hearing panel to be fulfilled, matters in mitigation must be submitted by [no] later than the close of the hearing unless other arrangements are permitted by the hearing panel.
“We have reviewed all of the evidence in mitigation and find that no revision of our previously submitted final hearing report is required.”
Respondenfs Exceptions
The respondent takes exception to three statements made by the hearing panel in the final hearing report. These exceptions present three issues for review: (1) Did the panel err by finding that the respondent violated KRPC 1.15(b)? (2) Did the panel err in finding that Katha Helms was “vulnerable” within the meaning of Section 9.22(h) (aggravating factors) of the ABA Standards for Imposing Lawyer Sanctions (1991)? and (3) Was the panel’s recommended discipline excessive?
The applicable standards of review are as follows:
“ ‘In disciplinary matters, we have a duty to examine the evidence and determine for ourselves the judgment to be entered. Although the report of the disciplinary panel is advisory only, it will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicted testimony. [Citations omitted.] We apply these rules in considering the evidence, the findings of the panel, and the arguments of the parties in making our determination of whether violations of KRPC exist, and, if they do, deciding upon the appropriate discipline to be imposed.’ ” In re Zimmerman, 270 Kan. 855, 858, 19 P.3d 160 (2001) (quoting In re Berg, 264 Kan. 254, 269, 955 P.2d 1240 [1998]).
KRPC 1.15(b)
The respondent claims that in the final hearing report, the hearing panel incorrectly said that he stipulated “that funds from the house closing upon the sale of his mother’s house were not promptly delivered to the Respondent’s brother.” He also claims that in the “Conclusions of Law” section of the report, the panel incorrectly said, “Respondent failed to notify his brother and failed to pay his brother’s share of the funds from the sale of their mother’s house in a prompt fashion.”
The respondent contends that his brother Charles Wall was paid his share of the house sale proceeds directly by the closing agent. The respondent’s testimony before the panel confirms this assertion. The Disciplinary Administer concedes that the quoted portions stated above do not accurately represent the conduct that violated KRPC 1.15(b) to which the respondent stipulated. However, the Disciplinary Administrator points out that at the hearing, the respondent admitted violating KRPC 1.15(b). Thus, the Disciplinary Administrator argues that the errors are clerical, harmless, and of no effect.
At the hearing, the respondent’s counsel said:
“The other violation that we think probably occurred and we agree occurred with regard to 1.15 subsection(B) is this. The sequence of events that took place is relatively simple and we think and agree that it leads to a conclusion that Mr. Wall did not properly deliver to his brother his share of the funds in that segregated account. . . . There’s been no claim by anybody that any of the property or proceeds from the sale of the house were delayed or not distributed appropriately.” (Emphasis added.)
Clarification developed during oral argument before this court. The Deputy Disciplinary Administrator said:
“With respect to the first exception, the respondent is correct. The final hearing report inaccurately states in the stipulations of violations and the conclusions of law, that the respondent did not provide the proceeds of the sale of the house to his brother. That’s inaccurate. What the final hearing report should state is that he did not provide in a timely manner the proceeds of the mother’s checking and savings account.”
The panel accepted the respondent’s admission to the violation of KRPC 1.15(b). The respondent points out that the funds distributed late to Charles totaled $1,687.05, plus interest. The respondent later paid him an additional $666.99, representing 10% annual interest on his portion of the remaining money from the bank account and a credit for a previous copying expense. The total amount of cash assets held by the respondent had totaled $7,753.93, out of which expenses were eventually paid. After Charles’ complaint was filed, counsel was engaged to represent the respondent. The respondent’s counsel advised him to do nothing while the investigation was ongoing. Then, John Seeber, the attorney investigating Charles’ complaint, “made it crystal clear that he seriously considered this [nondistribution] to be a violation,” so the respondent decided to go against his counsel’s advice and distribute Charles’ portion.
Despite the panel’s technical error concerning distribution of the funds from the sale of the respondent’s mother’s house, the respondent acknowledged that he violated KRPC 1.15(b) by failing to distribute Charles’ share of the segregated account. See In re Rickman, 266 Kan. 658, 663, 972 P.2d 759 (1999) (recognizing a technical error in the panel’s recitation of a date, but finding clear and convincing evidence to support the panel’s findings). We find there is clear and convincing evidence supporting the panel’s finding that the respondent violated 1.15(b).
“Vulnerable” victim
Next, the respondent argues that the panel incorrecdy found “Katha Helms, as the victim of a serious personal injury, was obviously incapable of handling restitution and compensation on her own behalf and was therefore vulnerable.” The ABA Standards permit consideration of the “vulnerability of [the] victim” as an aggravating factor:
“Aggravation
“9.21 Definition. Aggravation or aggravating circumstances are any considerations, or factors that may justify an increase in the degree of discipline to be imposed.
“9.22 Factors which may he considered in aggravation. Aggravating factors include:
(h) vulnerability of victim . . . .”
The respondent argues that Helms was not permanently mentally or physically incapacitated by her injuries. However, he notes that she had “a metal jaw, a ruined right hip, and . . . will have trouble having children.” The respondent does not question that Helms was seriously and permanently injured in her accident, but he contends that her injuries were not die type that would make her especially vulnerable to the misconduct of a lawyer.
The Disciplinary Administrator acknowledges that ABA Standard § 9.22(h) does not define the word “vulnerability.” He argues that the application of the term is to be determined by the specific facts of a case. At the hearing, the Disciplinary Administrator argued that Helms was a “vulnerable” person:
“Vulnerability of the victim, I think that applies only to Katha Hebb/Helms. She was vulnerable. She clearly . . . did not know the statute of limitations had been missed until June 19th of 1999 when she had the conversation with attorney Greg Lower and then she telephoned the respondent. But up until that time, she was trusting her attorney that her attorney was going to represent her and she was injured.”
In addition, the Disciplinary Administrator argued that he did not think Helms was very “worldly” and that, although he was unsure of her education level, he did not think she was well-educated.
The respondent argued that “vulnerability” means an “uneducated” person, “somebody who has a mental or emotional problem, someone who is very old, [or] someone who is very young.” He observes that the Commentary to ABA Standard § 9.22, p. 49, cites People v. Lanza, 200 Colo. 241, 613 P.2d 337 (1980), as an example of “vulnerability of victim.” Although the term “vulnerable” was not used in the opinion, the Lanza court observed that one of the victims was a widow in her early seventies, who was indigent, somewhat feeble, and had a poor grasp of the English language. 200 Colo. at 242. The respondent also cites cases from other jurisdictions, See People v. Crist, 948 P.2d 1020, 1020-21 (Colo. 1997) (lawyer abandoned clients in criminal, juvenile, and civil cases, and some of those clients were “vulnerable”); In re Basile, 714 So. 2d 687, 688 (La. 1998) (victim of lawyer s misconduct included lawyer’s own father); Matter of Discipline of Tanner, 960 P.2d 399, 402 (Utah 1998) (client was vulnerable due to his adversarial relationship with police, which may have led lawyer to believe client would avoid reporting lawyer’s misconduct).
The Disciplinary Administrator references our disciplinary opinions in which the panel has found clients to be vulnerable. See In re Coggs, 270 Kan. 381, 401, 14 P.3d 1123 (2000) (client was 90 years old and placed her trust in attorney who prepared her will and trust); In re Trickey, 268 Kan. 835, 838, 999 P.2d 964 (2000) (“all bankruptcy clients are financially vulnerable”); In re Cole, 268 Kan. 171, 175, 991 P.2d 422 (1999) (client did not have experience in the administration of a decedent’s estate matters and relied completely on the advice and judgment of the attorney); In re Christians, 267 Kan. 240, 243, 978 P.2d 910 (1999) (client unsophisticated in bankruptcy matters and trusted attorney’s professional expertise); In re Scimeca, 265 Kan. 742, 747, 962 P.2d 1080 (1998) (unsophisticated consumers of limited means); In re Anderson, 264 Kan. 758, 760, 956 P.2d 1330 (1998) (indigent clients); In re Berg, 264 Kan. 254, 278, 955 P.2d 1240 (1998) (emotionally distraught clients); In re Seek, 258 Kan. 530, 533, 905 P.2d 122 (1995) (client sustained permanent injuries and was not skilled or experienced in business matters or in handling litigation). However, none of the cited cases either involved a statute of limitations bar or an objection to the “vulnerability” finding.
Helms relied upon her attorney, but was not informed that her claim was barred until months after the statute of limitations had run. The problem, as we see it, with applying vulnerability as an aggravating factor here is twofold. First, every personal injury plaintiff relies on counsel to protect his or her claim from being barred by the statute of hmitations. Second, Helms did not appear before the panel. Thus, a traditional element of factfinding, listening, and observing as the witness testifies, is missing here. Helms’ complaint was submitted by stipulation and agreement. We do not believe vulnerability is an appropriate aggravating factor here. Our conclusion is limited to the facts of this case. Our holding on vulnerability, however, does not affect our endorsement of the panel’s recommendation on discipline.
Recommended discipline
The hearing panel recommended that the respondent be disciplined by public censure. The respondent recognizes negligence in handling the Helms matter and ineptness in the handling of his mother’s estate. However, he contends that nobody suffered injury. The Disciplinary Administrator disagrees and argues that the respondent caused significant injury to his client, the public, the legal system, and the legal profession.
ABA Standard § 4.43 deals with lack of diligence and says:
“Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable'diligence in representing a client, and causes injury or potential injury to a client.”
ABA Standard § 2.5 provides: “Reprimand, also known as censure or public censure, is a form of public discipline which declares the conduct of the lawyer improper, but does not limit the lawyer’s right to practice.” The Commentary to ABA Standard § 2.5 includes the following:
“A reprimand is appropriate in cases where the lawyer’s conduct, although violating ethical standards, is not serious enough to warrant suspension of disbarment. ... A reprimand serves the useful purpose of identifying lawyers who have violated ethical standards, and, if accompanied by a published opinion, educates members of the bar as to these standards.” p. 22.
The respondent argues that ABA Standard § 2.6 (admonition) provides a .more appropriate form of discipline. The Commentary to § 2.6 says, in pertinent part:
“Admonition is the least serious of the formal disciplinary sanctions, and is the only private sanction. . . . Because imposing an admonition will not inform members of the public about the lawyer s misconduct, admonition should be used only when the lawyer is negligent, when the ethical violation results in little or no injury to a client, the public, the legal system, or the profession, and when there is little or no likelihood of repetition. Relying on these criteria should help protect the public while, at the same time, avoid damage to a lawyer’s reputation when future ethical violations seem unlikely.”
The Disciplinary Administrator notes that the success of Helms’ legal cause of action, had it gone to trial, is unknown. However, she clearly suffered serious injuries in her accident. As the Disciplinary Administrator observes, the respondent failed to fully investigate the merit of Helms’ case, failed to keep her informed, and failed to meet the statute of hmitations deadline.
The statute ran on October 2, 1999. In his February 23, 2000, letter to Helms, the respondent said he was not convinced that she had a good claim because “it appears from the [accident] report that [Helms] simply missed the curve.” However, the respondent acknowledged that he did not have Helms’ version of events. At the disciplinary hearing, he admitted that he did not know if she “had a case” and had not analyzed the matter properly.
With regard to Charles Wall’s complaint, the Disciplinary Administrator notes that the respondent showed an unwillingness to distribute Charles’ portion of their mother’s savings and checking accounts and certificate of deposit for 2 years. The distribution was finally made during the investigation of Charles’ complaint. The panel concluded that there was no harm caused by the respondent’s conduct with respect to Charles’ complaint.
Despite the lack of injury to Charles, there was significant potential injury to Helms. In addition, respondent’s admission of his four violations of the KRPC supports published censure.
We find that the panel’s findings and conclusions as modified herein are supported by clear and convincing evidence.
Respondent suggests that if we publish this opinion we omit his name. No precedent is cited in support of that type of opinion. We reject the suggestion.
It Is Therefore Ordered that Larry W. Wall, be disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (2001 Kan. Ct. R. Annot. 224).
It Is Further Ordered that the costs of this proceeding be assessed to the respondent, and that this opinion be published in the official Kansas Reports.
Davis, J., not participating.
Brazil, Chief Judge Retired, assigned. | [
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|
The opinion of the court was delivered by
Six, }.:
This case considers the interplay between a K.S.A. 44-504(b) workers compensation subrogation lien and a K.S.A. 40-284(f) underinsured motorist (UIM) substitute payment. The defendants, Gallagher Woodsmall, Inc. (Gallagher) and the Kansas Auto Dealers Workers Compensation Fund (the Fund), paid workers compensation benefits to Paul Loucks, plaintiff, who was injured in the course of his employment. The question for review is whether the defendants’ K.S.A. 44-504(b) lien attaches to a K.S.A. 40-284(f) substitute payment made to Loucks by Farm Bureau Mutual Insurance Company, Inc., (Farm Bureau), his UIM carrier. Loucks claims that he is entitled to the return of the payment he voluntarily made to the defendants to satisfy the Fund’s K.S.A. 44-504(b) subrogation hen.
The district court, reasoning that Loucks’ voluntary payment to the defendants was made under a mutual mistake of law, held that the Fund’s workers compensation lien did not attach to Farm Bureau’s substituted payment. The district court concluded that Loucks was entitled to a judgment in the amount he had paid to the defendants, plus interest.
Our jurisdiction is under K.S.A. 20-3018(c) (transfer on our own motion).
The first impression issue for Kansas is whether a K.S.A. 44-504(b) workers compensation subrogation lien attaches to a K.S.A. 40-284(f) substitute payment by a UIM carrier. The answer is “yes.” The district court is reversed.
The other appellate issues raised by the defendants (whether the district court erred in: (1) denying the defendants’ motion for summary judgment, (2) finding a mutual mistake of law existed, (3) refusing to grant the defendants’ motion to amend the pretrial order, (4) granting Loucks’ motion for reconsideration, and (5) refusing to admit evidence proffered by the defendants at trial) are moot by our resolution of the K.S.A. 40-284(f) substitute payment issue.
FACTS
On Januaiy 14, 1995, Loucks, acting in the course and scope of his employment with Burtis Motor Company, was injured in an automobile accident. The other driver, Deciderio Celiz, was insured under auto policies with aggregate limits of $50,000 in liability coverage. Loucks’ Farm Bureau policy provided UIM limits of $300,000.
In August 1996, Loucks filed a claim for workers compensation benefits. He was represented by the law firm of Patton, Kerbs, and Hess, of Dodge City, Kansas. The Fund paid workers compensation benefits to Loucks. At the time, Gallagher was the claims administrator for Loucks’ employer and the Fund. JoAnn Rickner was the claims adjuster who handled the workers compensation claim for Gallagher.
Loucks filed a negligence action against Celiz in January 1997. Before suing, he settled his workers compensation claim for a lump sum of $36,207.27. The Fund then had a K.S.A. 44-504(b) workers compensation hen against the recovery in the third-party tort action. Loucks’ settlement with the Fund expressly recognized that the Fund’s hen pertained to recoveries against responsible third parties. However, UIM benefits or substitute payments were not addressed in the settlement.
Later, Celiz’ liability insurers offered to settle Loucks’ claims against Celiz for policy limits, reaching a tentative settlement for $50,000. Loucks’ attorney, Leslie Hess, notified Farm Bureau of the tentative settlement. Farm Bureau, to preserve its UIM subrogation rights against Celiz, substituted its payment under K.S.A. 40-284(f) for the payment from the liability carriers to Loucks of the $50,000 tentative settlement.
Hess wrote to Rickner in October 1997, sending Rickner a copy of Hess’ contingent fee agreement with Loucks and advising Rickner that Farm Bureau’s substitute payment of $50,000 should be made payable to Hess and Loucks. Hess said that payment of the Fund’s workers compensation subrogation lien, less prorated expenses and attorney fees, would be paid from the proceeds of the Farm Bureau check. The same day, a second letter was faxed to Rickner, stating that the total amount to be paid to the Fund was $21,260.92. Rickner faxed an acknowledgment of the agreement with Hess regarding reimbursement and the claim total and confirmed that reimbursement to the Fund would be made from the Farm Bureau funds placed in Hess’ trust account.
Farm Bureau made the $50,000 substitute payment. Hess paid $21,260.82 of the Farm Bureau substitute payment to Gallagher, for the Fund, in satisfaction of the Fund’s K.S.A. 44-504(b) hen. This amount reflected an allowance for Hess’ 40% contingent attorney fee and a reimbursement of 72% to Hess for the then-incurred expenses.
Nineteen months later, Hess wrote to Gallagher advising that she believed she had erroneously reimbursed the Fund from Farm Bureau’s substitute payment. Hess requested return of the payment (less $772.57, an expense reimbursement extended to her). She supported her request by enclosing a copy of the Kansas Bar Association Journal article by Gerald W. Scott and citing Knight v. Insurance Co. of North America, 647 F.2d 127 (10th Cir. 1981). See Scott, Uninsured/ Underinsured Motorist Insurance: A Sleeping Giant, 63 J. Kan. B.A. 28, 39 (May 1994).
Gallagher denied the request. Loucks sued defendants, alleging that the payment of $21,260.82 was made by mutual mistake based on the belief that the Fund was entitled to reimbursement from Farm Bureau’s UIM substitute payment.
A pretrial conference order was entered in March 2000 stipulating that all necessary and indispensable parties were parties to the action. The defendants filed a motion for summary judgment. The district court denied the defendants’ claim that they were entitled to judgment as a matter of law on the issues of mistake and attachment of the workers compensation lien to Farm Bureau’s substitute payment. In reaching his decision, the district judge found a mutual mistake of law made by Hess and Rickner. He concluded that the substitute UIM payment was not an appropriate source for satisfaction of the Fund’s workers compensation lien under either Kansas statutes or under Farm Bureau’s UIM contract with Loucks.
The district court granted the defendants’ motion to join Farm Bureau as a necessary and indispensable party. The defendants then filed a cross-claim and third-party petition against Farm Bureau. Loucks filed a motion to reconsider the joinder order. Farm Bureau filed a motion to dismiss. The district court granted Loucks’ motion to reconsider, dismissed Farm Bureau and denied the defendants’ alternative request to stay the case. Farm Bureau was no longer in the case.
At a bench trial in August 2000, judgment was entered in favor of Loucks for $20,488.25, plus interest. The defendants appealed.
Farm Bureau, an appellee here, agrees with the defendants that their K.S.A. 44-504(b) subrogation lien for the workers compensation payment attached to Farm Bureau’s K.S.A. 40-284(f) substitute payment.
DISCUSSION
This case is to be decided by interpreting K.S.A. 44-504 and K.S.A. 40-284, which leads us directly to the cardinal question: Does a K.S.A. 44-504(b) workers compensation subrogation hen attach to the UIM substitute payment made by Farm Bureau? We first turn to the two statutes that are not only key players in settling the parties’ conflicting contentions, but assist us in answering this question in the affirmative.
K.S.A. 44-504(a) and (b) provide in part:
“(a) When the injury ... for which compensation is [paid] under the workers compensation act was caused under circumstances creating a legal liability against some person other than the employer ... to pay damages, the injured worker.
. . shall have the right to . . . pursue a remedy by proper action in a court of competent jurisdiction against such other person.
“(b) In the event of recovery from [another] person by the injured worker . . . by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by the employer to the date of such recovery and shall have a lien therefor against the entire amount of such recovery . . . .” (Emphasis added.)
K.S.A. 40-284(f) provides, in part:
“An underinsured motorist coverage insurer shall have subrogation rights under die provisions of K.S.A. 40-287 and amendments thereto. If a tentative settlement agreement to settle for liability limits has been reached widi an .underinsured tortfeasor, written notice must be given ... to the underinsured motorist coverage insurer by its insured. . . . Within 60 days of receipt of this written notice, the underinsured motorist coverage insurer may substitute its payment to the insured for the tentative settlement amount. The underinsured motorist coverage insurer is then subrogated to the insured’s right of recovery to the extent of such payment and any settlement under the underinsured motorist coverage.”
Statutory interpretation involves a question of law over which we have unlimited review. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998). The intent of K.S.A. 44-504(b) is two-fold: (1) to preserve injured workers claims against third-party tortfeasors and (2) to prevent double recoveries by injured workers. Wishon v. Cossman, 268 Kan. 99, Syl. ¶ 1, 991 P.2d 415 (1999). Employers are granted subrogation hens on tort recoveries by injured workers. See 268 Kan. at 104.
We have not previously addressed the issue of whether a K.S.A. 44-504(b) workers compensation subrogation Men attaches to a substitute payment made by a UIM carrier under K.S.A. 40-284(f). Loucks’ attorney, Leslie Hess, provided Farm Bureau with notice of a tentative settlement reached with Celiz. Farm Bureau declined to grant permission for Loucks to settle and, instead, substituted its payment for that of Celiz’ liability carriers. Loucks acknowledges in his brief that the tortfeasor’s $50,000 remains unpaid and is subject to the defendants’ hen. The parties agree thát if the pay ment had been made directly by Cehz’ insurers, the defendants would have a hen in the amount paid and would be entitled to satisfaction of their workers compensation Hen. Farm Bureau contends that the same conclusion should hold true when a UIM carrier substitutes payment for the liability carrier.
The defendants agree. Under K.S.A. 40-284(f), a substitute payment by a UIM carrier is not a payment of UIM “benefits.” Rather, a substitute payment is a recovery under K.S.A. 44-504(b). The defendants assert that the workers compensation lien created by K.S.A. 44-504(b) should apply because the sums paid by the UIM carrier are “simply sums which have been substituted for liability insurance which, undisputedly, is subject to the hen.” Moreover, the defendants contend that a substitute payment is a consequence of the remedy pursued by the injured worker against those having legal HabiHty to the worker. We agree. Here, the Farm Bureau substitute payment to Loucks was made in place of payments to Loucks from CeHz’ HabiHty carriers. The latter payments unquestionably would be subject to the Fund’s Hen. We see no meaningful distinction, under the facts here, between the Farm Bureau substituted payment and payments from Cehz’ HabiHty carriers.
The district court found that Knight controlled. See 647 F.2d 127. Because Knight was characterized as dispositive by Loucks in justifying his request for the return of his voluntary payment, and by the district court in ordering that the payment Ire returned, an examination of Knight is required.
Knight was injured in a colhsion with an uninsured motorist (UM) while driving a vehicle of his employer Garrett-Jones. Knight received $16,043.63 from Insurance Co. of North America (INA), the workers compensation carrier for Garrett-Jones. Knight then sought to recover additional funds because of a separate UM pohcy that his employer had with INA. The UM Hmit was $15,000. The federal district court held that INA was subrogated to the extent of the amount it had paid out as workers compensation on any recovery Knight might have had upon the UM poHcy. The Tenth Circuit Court of Appeals disagreed, reasoning that K.S.A. 44-504 was only intended to cover actions against third parties sounding in tort. Workers compensation subrogation rights and Hens do not extend to actions based on UM policies because such actions “sound in contract.” 647 F.2d at 128. Knight noted that many other jurisdictions have found that a workers compensation carrier’s subrogation rights do not extend to actions based on UM policies. 647 F.2d at 128. See, e.g., Courson v. Maryland Casualty Co., 475 F.2d 1030 (8th Cir. 1973); State Farm Mutual Automobile Ins. Co. v. Cahoon, 287 Ala. 462, 252 So. 2d 619 (1971); Travelers Ins. Co. v. Natl. Farmers Union, 252 Ark. 624, 480 S.W.2d 585 (1972). The Knight court said:
“The common thread of analysis in all these cases is that under workmen’s compensation statutes with similar language subrogation is allowed only for actions in tort; and actions based on uninsured motorist policies sound in contract, not tort. These principles square with Kansas law.” 647 F.2d at 128-29.
It appears that Knight focused on the language in what is now K.S.A. 44-504(c) which states: “Failure on the part of the injured worker ... to bring such action within the time herein specified, shall operate as an assignment to the employer of any cause of action in tort which the worker . . . may have against any other party . . . .” See 647 F.2d at 128.
Under the reasoning in Knight, the district court here concluded that payment of UIM benefits does not extinguish a defendant’s workers compensation hen under K.S.A. 44-504(b); rather, the Hen remains intact and has priority over the UIM carrier that may elect or not elect to substitute.
Knight does not reference either UIM coverage or K.S.A. 40-284(f) because it was not a substitute payment case. Knight is, therefore, distinguishable. Knight focused on the application of a UM claim, not a substitute payment made by a UIM carrier. Here, we are dealing with UIM coverage. Unlike the present case, INA in Knight was contractually obligated to make payments to the injured driver. Knight omitted any reference to K.S.A. 44-504(b), which says “in the event of recovery . . . by judgment, settlement, or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by the employer to the date of such recovery and shall have a Hen therefore against the entire amount of such recovery . . . .” K.S.A. 44-504(b) makes no distinction between the types of recovery to which the workers compensation subrogation hen attaches. Although the letter “b” was added in the 1974 supplement to K.S.A. 44-504 as a subsection label, the language in subsection b, quoted above, was in the 1973 version of 44-504 at issue in Knight
Loucks relies primarily on Knight. He reasons, as did Knight, that K.S.A. 44-504 subrogation hen rights are hmited to actions in tort and “not contract actions of underinsured motorist coverages purchased by the worker from his or her own independent funds.” He also asserts that he receives no “windfall” under the district court’s ruling. The defendants argue that by allowing workers compensation hens to attach to a UIM substitute payment, the injured worker plaintiff is made whole but does not receive a “windfall.” Loucks acknowledges that he is not entitled to benefits that are duplicative of workers compensation benefits. K.S.A. 40-284(e)(4) allows “any insurer” to exclude or hmit coverage “to the extent workers’ compensation benefits apply.” Loucks emphasizes that his Farm Bureau policy contained the following exclusionary language:
“We do not provide coverage under the Part for bodily injury sustained by any person:
4. To the extent Workers’ Compensation Benefits are required to apply.
“This coverage shall not apply directly or indirectly to benefit any insurer or self-insurer under any of the following or similar law:
1. Workers compensation law. . . .
“. . . Any amount otherwise payable for the damages under this coverage shall be reduced by all sums paid for the same damages because of the bodily injury by or on behalf of persons or organizations who may be legally responsible.”
He contends that the above provisions prohibit the defendants from receiving UIM “benefits” payable by Farm Bureau to Loucks. He fails to acknowledge that the payment made by Farm Bureau was a substitute payment, not a payment of UIM “benefits.” Our analysis is supported by Metrix South v. Rose, 758 So. 2d 1259 (Fla. App. 2000). Metrix South resolved a factual scenario and arguments from the parties similar to the ones presented here.
In Metrix South, the Roses sued the Concilios for damages incurred in an auto accident. The Roses’ UIM carrier, AETNA, was also named as a defendant. Edward Rose was injured while in the course of his employment. He filed a claim against Travelers, his employer’s workers compensation carrier. Concilios’ liability carrier, Allstate, tendered its policy limits of $100,000 to the Roses. AETNA, the Roses’ UIM carrier, refused permission to settle and substituted its payment of $100,000 to the Roses. Travelers filed notice of its workers compensation Hen on the $100,000 substituted payment AETNA had made to the Roses. The district court, as did the district court here, held that the workers compensation lien did not attach to the UIM carrier’s substitute payment. Metrix South reversed. 758 So. 2d at 1261-62.
Travelers, the workers compensation carrier, argued “that the trial court incorrectly characterized the $100,000 payment as UM/ UIM benefits instead of settlement proceeds, even though the money was paid by the UM/UIM carrier.” The Metrix South court agreed. 758 So.2d at 1260.
The parties here do not dispute that a workers compensation subrogation hen attaches to a payment by a liability carrier. When a substitute payment is made under K.S.A. 40-284(f), the UIM carrier steps in and substitutes its payment in the place of a tentative settlement payment by the tortfeasor’s liability carrier. A K.S.A. 44-504(b) workers compensation subrogation lien attaches to the K.S.A. 40-284(f) substitute payment.
Reversed. | [
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|
The opinion of the court was delivered by
Abbott, J.:
This is an appeal by the defendant, Leonard B. Kirby, Jr., from his conviction of the unintentional second-degree murder of Karen Couts, who died as a result of a ruptured spleen after twice seeking emergency medical care at the University of Kansas Medical Center (UKMC). Kirby contends that causation instructions should have been given with regard to the alleged negligence of UKMC emergency room physicians, which he claims was an efficient intervening cause of death. Kirby requests that his conviction be reversed and the case remanded for a new trial. In the alternative, Kirby asks the court to vacate his sentence, which is a controlling term of 146 months with post-release supervision of 36 months.
Karen worked in construction operating heavy equipment, was 38 years old, and had three children, Janee, age 20, Jessica, age 19, and Michael, age 10, at the time of her death in December 1998. Karen lived with Kirby.
Janee testified that the weekend before Thanksgiving she had to pick up her mother because Kirby and Karen had gotten into a fight and the police were there. Karen had scratch marks on her neck and told Janee that Kirby was “dragging her by her larynx, that he had been pulling her like he was going to pull it out, not that he said he was, but he was like choking her, grabbing her by her larynx. ” Karen spent the night at Janee’s apartment in Overland Park.
The next morning as Janee and her roommate were getting ready to leave, Kirby came to the door. When Janee returned about an hour later, there were police cars parked in front of her apartment. That day, Janee’s neighbor, Barbara Machin, heard a disturbance outside and saw Karen lying on the ground while Kirby hit her in the face with his fists. Machin called 911. Another neighbor, Michael Weddington, also called police after he saw Kirby repeatedly hit Karen in the face and chest. Weddington testified that Kirby then walked to his truck, where several of his children were waiting, and drove up on the lawn toward where Karen was lying. Karen told Janee that Kirby had attacked her and had tried to run over her with his truck. Initially, Karen wanted to press charges, but later she resumed her relationship with Kirby. Less than 1 month later, Kirby again attacked Karen. This attack led to Karen’s death.
On Friday, December 18, 1998, Kirby and Karen went out to several bars. Eliza DeGhelder testified that she threw a surprise birthday party for the owner of Miss Kitty’s bar that night and invited Kirby and Karen to attend. DeGhelder saw them at Miss Kitty’s sometime between 6 and 8 p.m. and spoke with Karen for about 10 to 15 minutes.
Jamie Bishop testified that he was tending bar at Cedar Lawn and saw Karen there around 11 p.m. Karen spoke with Wayne Willeford, the brother of her ex-husband, and asked him to whip Kirby if he came to the bar. Approximately 30 minutes later, Kirby entered Cedar Lawn and walked up to the bar. Karen confronted Kirby, screaming at him, and then ran into the bathroom. After she came out, she began shoving Kirby and screaming at him. As far as Bishop could tell, Karen wanted Kirby to leave her alone. Karen went out the front door, and 2 or 3 minutes later Kirby followed. Bishop said that when he came back into the bar, Kirby had a scratch on his forehead. Kirby said Karen had gotten into a car with two other men and that one of the men had hit him. Kirby stayed at the bar another 10 or 15 minutes and then left around midnight. Bishop said that before Kirby left, he took a phone call from Karen, and then talked to Willeford and his girlfriend about going to Miss Kitty’s bar to find Karen.
Mark Powers testified that Karen came to his house in Kansas City, Kansas. Powers lived there with his wife and four of his six children. Powers said that he and Karen were friends. Karen had lived across the street from Powers with David Cheaney, her youngest son’s father, for several years, but had not been living with Cheaney the past 2 years. Powers drove Karen to her home and arrived at approximately 1:10 a.m.
Keith Ussery testified that on the night of December 18, 1998, he lived with Lori Packer and her son on South 14th Street. Ussery said that around 1 a.xn., Packer woke him up. Packer said, “They’re fighting again next door,” and “Keith, they’re really fighting this time.” From the bedroom window, Ussery could see Karen and Kirby fighting on a concrete walkway behind their house. The motion-detector security light was on and Ussery could see “real well what was going on.”
Ussery saw Karen lying on the ground and Kirby kicking her with his boots and hitting her with his fists. According to Usseiy, Kirby kicked her more than a dozen times in the “stomach, the head, just wherever he could kick, whatever he could hit.” When asked where on the stomach Kirby kicked Karen, Ussery responded: “The sides, the front, the back because he’d kick her and she’d like roll away and he’d kick her again and stomp on her.” Ussery witnessed Kirby striking Karen’s head, stomach, back, and sides repeatedly with his fists, and said at one point, Kirby literally picked Karen up and threw her inside the house. At one point, Kirby was on top of Karen shaking her and hitting her head on the concrete. Ussery stated that “a couple times she would try to hit him back, but most of the time she was pleading with the man to stop . . . .” Ussery told Packer to call the police but to stay out of it. Right before the police came for the second time, Karen fled north down 14th Street, first crossing through Packer’s back yard. Ussery saw Kirby jump the fence behind the houses and flee into the woods.
Packer also witnessed Kirby attacking Karen. Just as she was preparing to go to bed around 1 a.m., she heard a truck squeal into the driveway next door, followed by a male voice screaming. Packer testified she knew it was Kirby’s voice because she had heard him scream at Karen before. When Packer looked out of her bedroom window, she saw Karen lying on the ground and Kirby straddled on top of her waist. Packer testified, “He was hitting her with his fist full force, the back of his — with his knuckles as hard as he could on the side of her head.” Kirby kept asking her where she was, and after a while told her he would kill her if she did not tell him where she went and with whom. Packer also saw Kirby grab Karen by the head and slam it on the ground using full force. In addition, Packer said Kirby forcefully kicked Karen’s left side three or four times with his boots. According to Packer, Karen kept telling him to stop and that she loved him. She tried to get her hands free and then would try to hug Kirby.
Packer called 911 five times that night, pleading with the dispatcher to send police. According to 911 records, Packer’s first call was at 1:14 a.m., and the fifth call at 1:44 a.m. The first time police arrived at the residence, they knocked on the front door and then left after no one responded. Packer told the dispatcher that Karen and Kirby were in the back yard, but Packer did not want to open her door and talk to the police because she did not want Kirby to know she called the police. After the police left, Packer saw Kirby still on top of Karen beating her in the head. Karen screamed and asked for help, so Packer called the police again. After telephoning 911 again, Packer went back to her window to check on Karen. Karen had jumped over the fence into Packer’s backyard, had gone through the gate, and up the street. Packer went to the front of her house to see where Karen was going and saw the police coming. Kirby jumped the back yard fence and went into the woods to hide. Packer told an officer where Kirby was, but the officer could not see Kirby in the woods. When one of the officers announced Karen had been found up the street, the other officers left to make sure it was her. Packer said that when the police left, Kirby came back over the fence to the house, banged on the windows, and screamed, “Let me in.” The officers returned, and Kirby again went over the fence into the woods. This time, however, they found Kirby and placed him under arrest.
Paramedics transported Karen to the UKMC emergency room. Todd Farley, an emergency medical technician, testified that initially Karen refused to let anyone examine her, but after she calmed down and warmed up in the back of the ambulance, she consented to an exam. Farley stated: “[S]he was very swollen in the head, the forehead, around the eyes, she had lots of dry blood that was around her nose and her mouth. . . . [S]he was complaining of pain around her wrist and you could tell on her left wrist was swollen and somewhat deformed. . . . She complained of pain to her ribs . . . .’’In addition, she was “guarding” against the pain every time the paramedics would push on her left side.
Dr. Vincent Hayes, an emergency medicine physician, treated Karen at the UKMC emergency room early Saturday morning, December 19, 1998. Karen complained of generalized pain, pain to her face, abdomen, lower chest, and left wrist. Since Karen gave a history of being kicked in the abdomen and complained of tenderness in the area of her spleen, Hayes ordered a CAT scan and x-ray studies. Hayes testified that the CAT scan showed nothing indicating an injury to the spleen. On cross-examination, Hayes agreed that clinical symptoms of hypovolemia, tachycardia, general upper abdominal pain, and pain at the tip of the shoulder could indicate splenic injury. However, Hayes stated that Karen only exhibited signs of generalized abdominal pain and slight tachycardia, which improved during the time Karen was there. Hayes stated that when he discharged her at 5:30 a.m. Saturday, she was alert, stable, and left on her own power.
On Friday night, Karen’s daughter Janee had gone to a birthday party and returned home around 2 or 2:30 a.m. About 3 a.m., Janee received a call from a nurse at UKMC telling her to come get Karen because she was badly hurt.
Janee testified that when she first saw Karen, “[h]er face was really badly beaten, she had like dried blood lumps on her face, her hair was matted, it had like grass in it. . . . [H]er face was just — it looked like she was a bum victim her face was so red and disfigured, it looked terrible. ... As soon as she saw me she started to cry.” Janee testified that she heard Karen tell the doctor, “My ribs are sore. Are they broken?” The doctor told Karen, “No, the CAT scan or your tests — the x-rays came back, you have no broken ribs. It will be sore for a while.” After Karen was discharged, she was able to walk to the car with Janee.
Janee picked up Karen’s prescription for Tylenol 3 around 5:30 p.m. on Saturday, December 19,1998. That evening, Karen’s condition progressively deteriorated and, according to Janee, Karen was experiencing sharp pains in her left shoulder area. On Sunday morning, Karen complained of shooting pain from her abdomen to her left shoulder and told Janee she wanted to go back to the hospital.
Dr. Richard Dietz, an attending physician, and Dr. Iliana Jarrin, a resident physician, examined and treated Karen at UKMC emergency room on Sunday, December 20, 1998. According to Dietz, Karen’s symptoms were similar to those in her medical records from Saturday. Dietz testified that they performed a complete physical exam on Karen, trying to determine the source of her pain. They palpated the area of her liver and spleen, but determined neither were enlarged and did not notice any guarding or rebounding. They did note that Karen’s “blood pressure was a little lower and her pulse rate was higher.” Because a CAT scan had already been done and because they found no focal tenderness over the liver, Dietz testified that they decided against further x-rays or CAT scans at that time.
Janee testified that while they waited in the exam room for the doctor, Karen became nauseous and vomited. According to Janee, Karen was given a shot to reheve the nausea. After they left UKMC around 12:30 p.m., Janee had to help Karen walk into the apartment. At 5:30 p.m., Karen tried to walk to the bedroom but collapsed, falling down on her knees. Janee laid her down on the floor and got her a blanket and pillow. At 9 p.m., Karen crawled from the living room into the bedroom.
Around 12:30 or 1 a.m. on Monday morning, Karen woke Janee saying she was going to get sick and vomited on the bed. About 3:15 a.m., Karen began crawling from the bed saying she had to get to the bathroom. She was so weak that Janee had to lift her onto the toilet. As Janee went to get clean clothes, her mother had a spasm, screamed, went stiff, and then lunged back. Janee yelled for her roommate to call 911. Officer Gregory Powell, who responded to the call around 3:45 a.m., entered the bathroom and helped carry Karen, who had become limp and unresponsive, to the living room where he and Janee started CPR. Med-Act paramedics and fire department personnel arrived and began CPR on Karen, but she never regained consciousness. After about 40 minutes, a doctor instructed them to cease CPR.
Dr. Erik Mitchell, a forensic pathologist, performed a postmortem examination on Karen’s body. Mitchell’s external examination revealed “a large number of bruises associated with some — with abrasion, which is scraping of the skin, she even had some gouges of skin where some skin had been gouged out.” He noted a bruise on her forehead with patterned lines, demonstrating a heavy contact blow he thought came from the sole of work boots. Both eyes were black and there were scrapes on her nose, a line of bruising that went up from the right ear, and gouges to the chin that would be consistent with having been hit or kicked. About 30 bruises were present on her body. The backs of her hands and wrists were red and swollen, there was a solid bruise from her forearm to the knuckles of her right arm, as well as several more bruises and abrasions. Mitchell found imprint bruises over the left side of her chest, on her knees, and on the back of her thighs. In addition, Mitchell noted that the abdomen appeared swollen, suggesting something inside causing the protuberance.
As part of the internal exam, Mitchell made an incision into her scalp to look for areas of injury. There were nine separate areas of bruising to the scalp from multiple impact injuries that had started to run together. Mitchell also found nondisplaced fractures of ribs 6, 7, 8, and 9 on Karen’s left side. Mitchell testified: “The most dramatic internal finding, which was that the splenic rupture — the spleen had formed — it had been damaged and a blood clot had formed in the spleen. In fact, the clot that I removed from the spleen was 970 grams, and the average spleen is probably between 125 and 200 grams or so. . . . And what had happened was there was bleeding inside the spleen .... [I]t had eventually reached the limit of its ability to stretch and it popped.”
Mitchell testified that “it’s blunt trauma that kills her. The mechanism that finally is involved is the damage to the spleen and the bleeding from the spleen.” Mitchell testified that the blow that damaged Karen’s spleen would have occurred within a few days of her death and related her death directly to that trauma.
Kirby presented the expert testimony of Dr. John Hiebert, a . board certified plastic surgeon additionally trained in general surgery, trauma surgery, and nutrition. Hiebert was retained by Kirby to review Karen’s medical records and render an opinion on the treatment she received at UKMC. Hiebert noted that according to the medical records, the bruises over the fractured rib area on Karen were not present on the first examination on Saturday, December 19. Thus, Hiebert posited that Karen might have suffered a new injury. Furthermore, in Hiebert’s opinion, based on Karen’s medical records, there was sufficient information for a physician to conclude on December 20 that she had an injury to her spleen, warranting another chest x-ray. Hiebert testified:
“If it had been pursued and there was evidence of her fractures and/or striation or leakage in that spleen, then there’s no question that she didn’t need to die. The spleen could have been removed and that would have been it. Many people have far greater injuries than she had survive. She didn’t because her spleen ruptured.”
After a 6-day trial, a jury convicted Kirby of unintentional second-degree murder on November 17, 1999. On January 28, 2000, Kirby was sentenced to a controlling sentence of 146 months, with post-release supervision for 36 months. Kirby filed this appeal pursuant to K.S.A. 22-3601(a) on January 31, 2000. The matter is before this court pursuant to a K.S.A. 20-3018(c) transfer.
I. JURY INSTRUCTIONS
The first assertion of error made by Kirby is that the trial court improperly instructed the jury on causation and the effect of an efficient intervening cause. Kirby asserts that Karen died from a ruptured spleen 2 days after he assaulted her because of a lack of proper treatment by medical personnel at UKMC.
“When reviewing challenges to jury instructions, we are required to consider all the instructions togedier, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citation omitted.]” State v. Mitchell, 269 Kan. 349, 355, 7 P.3d 1135 (2000).
Here, the trial court gave several instructions to the jury on the proximate cause of death and medical negligence:
“INSTRUCTION NO. 16
“To constitute an unlawful homicide, (First Degree Murder — Premeditated, Second Degree Murder — Intentional, Second Degree Murder — Unintentional, Voluntary Manslaughter or Involuntary Manslaughter) there must be, in addition to the death of a human being, an unlawful act which was a proximate cause of that death.
‘The proximate cause of a death is a cause which, in natural and continuous sequence, produces the death, and without which the death would not have occurred.
“There may be more than one proximate cause of a death. When the conduct of two or more person contributes concurrently as proximate causes of a death, the conduct of each of said persons is a proximate cause of the death regardless of the extent to which each contributes to the death. A cause is concurrent if it was operative at the moment of death and acted with another cause to produce the death.”
“INSTRUCTION NO. 17
‘Where the original injury is a proximate cause of the death, the fact that the immediate cause of death was the medical or surgical treatment administered or that such treatment was a factor contributing to the cause of death will not relieve the person who inflicted the original injuiy from responsibility.”
“INSTRUCTION NO. 18
‘The fact, if it be a fact, that some other person was guilty of negligence which was a contributory cause of the death involved in the case, is no defense to a criminal charge.”
“INSTRUCTION NO. 19
“One of the theories of die defense is that negligent treatment by physicians at the University of Kansas Medical Center was the sole proximate cause of death of Karen Couts and not the beating she sustained. You are instructed that if you find the defendant did cause the injuries inflicted on the person of Karen Couts, then you must determine whether the acts of the defendant contributed to the death of Karen Couts. If you find defendant’s acts contributed to the death . . . then responsibility cannot be avoided . . . [for] any unlawful homicide charge (First Degree Murder — Premeditated, Second Degree Murder— Intentional, Second Degree Murder — Unintentional, Voluntary Manslaughter, or Involuntary Manslaughter).”
Kirby states that the general rule regarding criminal liability is found in State v. Shaffer, 223 Kan. 244, 574 P.2d 205 (1977). In Shaffer, the victim was shot in the head by the defendant but still had a pulse and was breathing when the ambulance arrived. A neurosurgeon determined the victim had suffered irretrievable brain damage, and could be pronounced dead at any time, even though the victim could be maintained by artificial means indefinitely. Family members decided not to prolong his fife by a respirator and allowed his kidneys to be removed for transplantation. The defendant argued that the kidney transplant was the cause of death. This court stated: “Where a person inflicts upon another a wound which is calculated to endanger or destroy life, it is not a defense to a charge of homicide that the alleged victim’s death was contributed to ... by the negligence of the attending physicians or surgeons. [Citation omitted.]” 223 Kan. at 250.
Kirby contends that within that general rule is the prerequisite that the jury find that the defendant inflicted upon another a wound calculated to endanger or destroy fife. Under Kirby’s reasoning, because the jury found him guilty of unintentional second-degree murder, the injuries he inflicted were not calculated to kill and, thus, the jurors should have had the opportunity to decide if the negligence of physicians would operate to reheve him from liability for Karen’s death.
The fundamental flaw in Kirby’s proposition is that a conviction of unintentional second-degree murder does not negate the purposeful infliction of wounds “calculated to endanger or destroy life.” Kirby would have us believe that because his intentional infliction of severe wounds resulted in a death he did not intend, his infliction of those injuries could not be calculated to kill. We find that the words “wounds calculated to endanger or destroy fife” reflect an objective measure of severity of the wounds and have nothing to do with an attacker’s subjective intent in inflicting the wounds.
Both Packer and Ussery saw Karen lying on the ground while Kirby was kicking her with his boots and punching her with his fists. According to witnesses, Kirby struck and kicked Karen’s head, stomach, back, and sides repeatedly. Kirby also sat on top of Karen, shaking her and hitting her head on the concrete. Dr. Mitchell testified about a bruise on Karen’s forehead, which corresponded with the pattern of the sole of Kirby’s work boots, and about areas of her face where the skin had been gouged out. Here, there is ample evidence that Kirby inflicted wounds on Karen which were calculated to endanger or destroy life.
Kirby further contends that the instructions given in this case, while applicable to cases of ordinary negligence, would not apply to situations where there is gross negligence or an efficient inter- veiling cause. Therefore, Kirby believes the trial court erred in not allowing the jury to determine whether the negligence of medical personnel rose to the level of an efficient intervening cause, breaking the connection between his actions and Karen’s death. Kirby asserts that the question of whether the actions of the medical personnel amounted to a defense to the charge of murder was a question for the jury and that “the jury should have been instructed on the theory of an efficient intervening cause.”
The State asserts that Kirby requested instructions that were inconsistent with the law and that the jury was properly instructed on the issue of causation, citing State v. Lamae, 268 Kan. 544, 998 P.2d 106 (2000). There, the girlfriend of the defendant was killed in a house fire that evidence suggested began as a result of the production of methamphetamine. The defendant argued that the trial court’s refusal to instruct the jury that, in a felony murder, the death must be a direct result of the commission of a felony prevented him from arguing the intervening cause of the girlfriend’s own negligence in her death. This court found no error in failing to give the requested instruction. We stated: “[T]he general rules of proximate cause used in civil actions do not apply. Rather, a defendant will be found not responsible for the death which occurs during the commission of a felony only if an extraordinary intervening event supersedes the defendant’s act and becomes the sole legal cause of death.” (Emphasis added.) 268 Kan. 555.
Finally, in support of the idea that Kirby’s requested instructions were inconsistent with the law, the State cites State v. Anderson, 270 Kan. 68, 12 P.3d 883 (2000). There, we reversed the district judge’s dismissal of the charge of involuntary manslaughter where an officer pursuing a speeding motorcyclist ran a stop sign resulting in the death of another motorist. We noted:
“In the context of negligence, the Restatement (Second) of Torts defines a ‘superseding cause’ as ‘an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.’ Restatement (Second) of Torts § 440, p. 465 (1965). If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby. Restatement (Second) of Torts § 449, p. 482.” 270 Kan. at 74.
In our analysis of the facts presented in Anderson, we stated:
“Here, the issue of Anderson’s criminal responsibility focuses upon Anderson’s point of view, that is, whether the harm that occurred was a reasonably foreseeable consequence of Anderson’s conduct at the time he acted. Since the trooper s conduct was a direct and specific response to defendant’s conduct, the claim that the trooper’s conduct was a superseding cause of the accident can be supported only by a showing that the trooper’s conduct was so unusual, abnormal, or extraordinary that it could not have been foreseen.
“Our test for foreseeability set out in [State v.] Davidson [,267 Kan. 667, 987 P.2d 335 (1980)] is the same as that articulated by the Schmies court [People v. Schmies, 44 Cal. App. 4th 38, 51 Cal. Rptr. 2d 185 (1996)] in that it focuses on the defendant’s point of view, that is, whether the harm that occurred was a reasonably foreseeable consequence of the defendant’s conduct at the time he or she acted or failed to act. [Citation omitted.]” 270 Kan. at 76-77.
Here, Hiebert testified that had the bruising to Karen’s ribs been pursued by the treating physicians at UKMC and another chest x-ray taken, then Karen might not have died. Mitchell, on the other hand, concluded that blunt trauma resulting in damage to the spleen had killed Karen. It is clear that the physicians’ actions were not so unusual, abnormal, or extraordinary that they could not have been foreseen. The physicians’ negligence, if any, did not supersede the effect of the wounds inflicted by Kirby so as to become the sole legal cause of Karen’s death.
The trial court’s Instruction No. 19 to the jury stated that if “defendant’s acts contributed to the death of Karen Couts then responsibility cannot be avoided by the fact that independent causes such as the negligence of others also contributed to the death.” It also stated that if “the proximate cause of death resulted solely from erroneous treatment of the physicians you must acquit defendant ... of any unlawful homicide charge . . . .” Contrary to Kirby’s assertions, we find that the jury was allowed to consider whether the actions of the medical personnel amounted to a defense to a charge of murder.
Considering the instructions given to the jury as a whole, we find that they properly and fairly stated the law as applied to the facts of the case, and the jury could not reasonably have been misled by them. Thus, we hold that in instructing the jury, the trial court did not commit reversible error.
II. PRIOR ALTERCATION WITH SAME VICTIM
The second assertion of error is that the trial court erred by allowing the State to present evidence of the November 21,1998, altercation between Kirby and Karen. Kirby contends that the altercation at Janee’s house was completely separate from the events of December 19, had no relevance to the issues involved in the trial, was highly prejudicial, and should have been excluded.
“The admissibility of evidence lies within the sound discretion of the trial court. In State v. Sims, 265 Kan. 166, 175, 960 P.2d 1271 (1998), the court stated that ‘ “it is clear that our standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion.” ’ [Citation omitted.]” State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999).
“When a question arises as to whether evidence at trial is unfairly prejudicial, the trial court has an obligation to weigh the probative value of the evidence. When the prejudicial effect of the evidence on the trier of fact outweighs the probative value of the evidence, the evidence should be excluded.” 266 Kan. 939, Syl. ¶ 5.
On the second day of trial, November 9, 1999, the trial court ruled that, based on State v. Green, 232 Kan. 116, 652 P.2d 697 (1982), it would permit evidence of Kirby’s prior conduct to come in independent of K.S.A. 60-455. Judge Thomas L. Boeding stated:
“[E]vidence of the discordant marital relationship and previous ill treatment is relevant bearing on the defendant’s motive and intent, and I think that that’s well recognized in Kansas law.
“There’s a number of cases that I read, some which were cited by counsel in their briefs, but I suppose the main case is State v. Green, 232 Kan. 116. So that evidence will be permitted in this particular case.”
This court has previously stated:
“We have addressed the issue of relevance of evidence of a discordant relationship between a defendant and a victim in numerous cases and have held that admission of evidence of a discordant relationship is admissible independent of K.S.A. 60-455 and relevant to show the ongoing relationship between the parties, the existence of a continuing course of conduct, or to corroborate the testimony of witnesses as to the act charged. See State v. Hedger, 248 Kan. 815, 820, 811 P.2d 1170 (1991); State v. Taylor, 234 Kan. at 407; State v. Green, 232 Kan. 116, Syl. ¶ 4, 652 P.2d 697 (1982). In Hedger, we also discussed the remoteness of such evidence and held that any lapse of time between the acts described in the trial testimony and the acts alleged does not preclude the admission of evidence relative to motive and intent, but only goes to the weight to be given the evidence. 248 Kan. at 820 (citing State v. Green, 232 Kan. 116, Syl. ¶ 5).” State v. Clark, 261 Kan. 460, 470, 931 P.2d 664 (1997).
The State had formally charged Kirby with one count of first-degree murder on March 4, 1999. At trial, Kirby testified that although he admitted having an altercation with Karen on December 19, he denied having any intent to kill her. Thus, Kirby’s intent was at issue. The evidence relating to Kirby’s past attacks on Karen was probative as to his motive and intent, the ongoing relationship between the parties, and the existence of a continuing course of conduct between the parties. Despite Kirby’s claims that such evidence would inflame the jury, the jury found Kirby guilty of unintentional second-degree murder. Because the probative value of the evidence in regard to motive and intent outweighed any prejudice to Kirby, the trial court did not err in admitting the evidence.
III. MULTIPLE AUTOPSY PHOTOGRAPHS
The third assertion of error is that the trial court erred in admitting 18 autopsy photographs and 6 other photographs depicting Karen’s injuries. Kirby argues that the photographs were “highly prejudicial,” had “little probative value as the actual cause of death was not in dispute,” and “did not aid the jury on the issues in dispute."
“ ‘Admission of demonstrative photographs lies within the broad discretion of the trial judge. In determining whether demonstrative photographs should be admitted, a trial judge must determine whether they are relevant and whether a proper foundation has been laid.’ [Citation omitted.]” State v. Roberts, 261 Kan. 320, 329, 931 P.2d 683 (1997)
At trial, 18 autopsy photographs were admitted in conjunction with the testimony given by Mitchell. In addition, the court actually admitted seven other photographs of Karen that were taken while she was alive; four were taken by the police after the November 21 altercation, and three were taken by Karen’s daughter following the December 19 beating. After looking at the photographs in question, the trial court observed that none of them were outrageous or were “the kind that would inflame anybody.”
The three photographs of Karen, labeled Exhibits 22, 25, and 26, were pictures taken by Karen’s daughter Jessica on Sunday evening, December 20, 1998. The State sought their admission during the testimony of Janee. Counsel for the State noted that these photographs were the only pictures taken after the beating while Karen was still alive, and asserted that they served as proof of Karen’s condition just a few hours before her death. Counsel for Kirby objected, asserting that the photographs lacked relevance and were more prejudicial than probative. The trial court ruled that the three photographs would be received into evidence.
The four other photographs of Karen, contained in Exhibit 87, were taken by Officer Amy Auld in conjunction with the altercation between Kirby and Karen on November 21, 1998. The photographs were admitted by the trial court over the objection of Kirby’s counsel, who objected to their admission on the grounds of relevancy.
“The law is well settled in this state that, in a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death, even though they may appear gruesome. [Citation omitted.]
“ . . . Photographs which are unduly repetitious, gruesome, and withoutprobative value should not be admitted into evidence. [Citation omitted.] Nevertheless , demonstrative photographs are not inadmissible merely because they are gruesome and shocking where they are true reproductions of relevant physical facts and material conditions at issue. [Citation omitted.]” State v. Stone, 253 Kan. 105, 110-11, 853 P.2d 662 (1993).
The photographs were relevant to show the nature and extent of the injuries Karen sustained as a result of the two beatings administered by Kirby. Furthermore, the autopsy photographs are relevant in corroborating the testimony of Mitchell. All of the autopsy photographs admitted into evidence were taken prior to any incisions made by Mitchell and were not of a nature to inflame the jurors.
Here, the photographs of Karen were relevant to show the violent nature of Kirby’s attacks on Karen, the nature and extent of her injuries, the elements of the crime charged, the fact and manner of Karen’s death, and to corroborate the testimony of the witnesses. “[Ejvidence offered to prove the elements of the crime, the fact and manner of death, and the violent nature of the death and to corroborate the testimony of other witnesses is relevant and admissible. [Citation omitted.]” State v. Steadman, 253 Kan. 297, 306, 855 P.2d 919 (1993). Kirby’s assertion of error fails.
IV. PROSECUTORIAL CONDUCT
Kirby’s fourth assertion of error is that the State committed prosecutorial misconduct during closing arguments by appealing to the jury’s emotions and seeking a conviction based solely on sympathy for the victim. At trial, counsel for Kirby did not object to the comments of the prosecutor he now points to as erroneous.
This court discussed the standard of review to be applied where allegations of prosecutorial misconduct are raised for the first time on appeal in State v. McCorkendale, 267 Kan. 263, 979 P.2d 1239 (1999):
“Kansas does not ordinarily apply the plain error rule, and reversible error normally cannot be predicated upon a complaint of misconduct by the prosecutor during closing argument where no contemporaneous objection is lodged. If the prosecutor’s statements, however, rise to the level of violating a defendant’s right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection. Where the appellate court, in examining a claimed error of prosecutorial misconduct, determines that the misconduct may rise to the level of violating a defendant’s right to a fair trial, the claimed error will be considered. Thus, die plain error rule is recognized where the prosecutor’s misconduct is so prejudicial or constitutes a constitutional violation that if not corrected will result in injustice or a miscarriage of justice.” 267 Kan. 263, Syl. ¶ 5.
“The analysis of the effect of a prosecutor’s allegedly improper remarks in closing argument is a two-step process. First, the appellate court must determine whether the remarks were outside die considerable latitude the prosecutor is allowed in discussing the evidence. This analysis commences with the holding that in criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence adduced. Second, the appellate court must determine whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial, requiring reversal.” 267 Kan. 263, Syl. ¶ 7.
Kirby complains that the following statement of the prosecutor improperly asked the jury to convict out of a sense of sympathy for the victim:
“He [Kirby] wants to make this a case of blaming other people. Well, who is to blame in all of this? I suppose you could say that at least two other systems have failed this woman. The police were called four or five times that night. They should have responded more quickly, they should have gotten back and investigated more thoroughly, they should have found the two of them back there and stopped it then. That was the first system that failed her.
“The second one is probably the doctors. Dr. Dietz probably should have discovered that her spleen was bleeding by the time he saw her. So the medical system has failed her, too.
“Don’t let the criminal justice system fail her, too. Don’t be the third system that fails the woman. Her death was caused by this man and you have to find him guilty of first degree murder.”
Kirby argues that the prosecutor was not asking the jurors to weigh the evidence, but rather was asking them to convict him because Karen suffered. According to Kirby, the prosecutor made an impermissible appeal to the passions and emotions of the jurors.
We find that the prosecutor’s remarks did not show ill will and were not so gross and flagrant as to deny Kirby a fair trial. See State v. Leitner, 272 Kan. 398, Syl. ¶ 12, 34 P.3d 42 (2001). Thus, in the absence of an objection, we will not consider this issue.
V. GUILTY BEYOND A REASONABLE DOUBT
For his fifth assertion of error, Kirby argues that there was insufficient evidence to allow a jury to find him guilty beyond a reasonable doubt of second-degree murder. Kirby breaks his argument into two parts. First, he contends there was insufficient evidence for a jury to conclude that the injury which caused Karen’s death was inflicted by Kirby. Alternatively, he argues that the evidence presented was insufficient for a conviction of an unlawful homicide.
“If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found defendant guilty beyond a reasonable doubt.” State v. Bowen, 262 Kan. 705, 705, 942 P.2d 7 (1997) (citing State v. Knighten, 260 Kan. 47, Syl. ¶ 1, 917 P.2d 1324 [1996]).
A. Injury inflicted by Kirby.
Kirby contends that the evidence presented at trial contradicts the State’s theory that the injury to Karen’s ribs was caused by the beating he inflicted on her on December 19, 1998. He further asserts that the State failed to prove that Karen had a fractured rib or lacerated spleen on December 19, 1998.
“Murder in the second degree is the killing of a human being committed: . . . (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” See K.S.A. 2000 Supp. 21-3402. For a conviction of unintentional second-degree murder, the State must prove that the defendant unintentionally but recklessly, under circumstances showing extreme indifference to the value of human life, committed an unlawful act which proximately caused the death of a human being.
Kirby’s argument centers on the idea that the State failed to prove that he inflicted the injuries to Karen’s ribs and spleen that ultimately caused her death. However, the record does not reveal, and Kirby does not claim, that Karen or anyone else might have been responsible for those injuries. Ussery testified that Kirby’s attack on Karen lasted for 30 to 40 minutes and that he saw Kirby hit and kick Karen all over. Packer testified that Kirby forcefully kicked Karen’s left side three or four times with his boots. Christopher Way, a paramedic, testified that when he examined Karen that night, he noted an area of new bruising to the left side of her abdomen and left flank area. Janee took care of Karen from the time of her first dismissal from UKMC on December 20, 1998, until Karen’s death 2 days later, but testified that Karen fell only once on Sunday, December 21 around 5:30 p.m. Karen tried to walk to the bedroom but collapsed, falling down on her knees. Janee did not describe any incidents where Karen’s ribs were injured by falling.
In his brief, Kirby also argues that Karen did not have any fractured ribs at the time of her first visit to UKMC. Dr. Mitchell testified, however, that the rib fractures were non-displaced and would be difficult to see on x-rays. Mitchell also testified that the bruises and rib fractures on Karen’s left side were related to the damage to her spleen. Further, Mitchell stated that the blow that resulted in the damage to her spleen occurred within a few days of Karen’s death.
Viewed in the light most favorable to the prosecution, this court is convinced that a rational factfinder could have found Kirby guilty beyond a reasonable doubt of inflicting the wounds that caused Karen’s death.
B. Unlawful homicide.
Kirby argues in the alternative that the evidence “was insufficient to support a murder conviction because the actions of the [UKMC] medical personnel amounted to an efficient intervening cause” relieving him of criminal liability.
As was discussed above, the fact that another person acted negligently and contributed to the cause of the death is not a defense to a criminal charge. This court has stated that “a defendant will be found not responsible for the death which occurs during the commission of a felony only if an extraordinary intervening event supersedes the defendant’s act and becomes the sole legal cause of death.” State v. Lamae, 268 Kan. 544, 555, 998 P.2d 106 (2000).
Kirby never denied that he administered the beating that ultimately resulted in Karen’s death. He only argued that the negligent acts of UKMC treating medical personnel relieved him of criminal liability for her death. Because we have found that the physicians’ actions were not so unusual, abnormal, or extraordinary as to become unforeseeable, and that the physicians’ negligence, if any, did not supersede the effect of the wounds inflicted by Kirby so as to become the sole legal cause cause of Karen’s death, Kirby’s argument fails.
VI. CUMULATIVE TRIAL ERRORS
For his sixth assertion of error, Kirby argues that cumulatively the previously alleged errors have resulted in the denial of his right to a fair trial. The State disagrees.
“ ‘Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ ” State v. White, 263 Kan. 283, 308, 950 P.2d 1316 (1997) (citing State v. Lumbrera, 252 Kan. 54, Syl. ¶ 1, 845 P.2d 609 [1992]).
Because we have found no error previously, Kirby’s assertion of cumulative trial errors fails.
VII. PRO SE MOTION FOR A NEW TRIAL
Kirby’s final assertion of error is that his motion for a new trial was improperly handled and improperly denied without conducting an evidentiary hearing. Kirby sets forth three ways in which the trial court committed alleged errors.
“The court on motion of a defendant may grant a new trial to him if required in the interest of justice.” K.S.A. 22-3501(1). “The granting of a new trial is a matter which lies within the sound discretion of the trial court, and appellate review of a trial court’s decision denying a new trial is limited to whether the trial court abused its discretion. [Citation omitted.]” State v. Franklin, 264 Kan. 496, 498, 958 P.2d 611 (1998).
A. Failure to conduct an evidentiary hearing on ineffective assistance of counsel claims and failure to appoint conflict-free counsel for such a hearing.
First, Kirby contends that when he raised specific issues of ineffective assistance of counsel at the hearing on his motion for a new trial, the trial court should have (1) held a separate hearing and (2) appointed separate counsel to properly litigate his claim of ineffective assistance of counsel.
The jury verdict was entered in this case on November 16,1999. In conformity with the 10-day time limitation of K.S.A. 22-3501, Kirby’s counsel filed a motion for a new trial on November 30, 1999. On December 10,1999, the date of the hearing of the motion for a new trial, Kirby filed a pro se amendment in support of the motion for a new trial, adding issues for review and an allegation of ineffective assistance of counsel.
The State contends that since Kirby s motion was not timely filed, this court should not review the merits of the issue. However, in State v. Kingsley, 252 Kan. 761, 851 P.2d 370 (1993), where the defendant failed to raise the issue of ineffective assistance of counsel in a timely fashion, this court viewed the pro se pleading as a post-conviction motion and proceeded to the merits of the defendant’s claim. 252 Kan. at 765-66.
In Kingsley, this court noted that K.S.A. 22-4506 applies to determine a person’s entitlement to appointment of counsel when he or she is in custody after felony conviction. It provided that “[i]f the court finds that the petition or motion presents substantial questions of law . . . the court shall appoint counsel ... to assist such person.” See K.S.A. 2000 Supp. 22-4506(b). Therefore, in Kingsley, we held: “[T]here is no statutory requirement for ‘appointment of counsel at each and every post-trial motion . . . and such a decision rests within the sound discretion of the trial court.’ [Citation omitted.] In post-conviction proceedings, there also is some latitude in the constitutional requirement that a defendant be represented at critical stages.” 252 Kan. at 766-67.
The State notes that at the hearing Kirby asked his attorney to present his pro se requests to the court. On the record at the hearing, counsel for Kirby stated: “I was just informed by Mr. Kirby that he has added a fist under the heading ‘Amendment in Support of Request for a New Trial’ at the conclusion of mine. My client has requested that I present this to the Court. I believe that I am obligated to do so upon his specific request.”
Ordinarily, a litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal. State v. Saleem, 267 Kan. 100, 109, 977 P.2d 921 (1999). In Kingsley, however, this court mentioned that procedurally, the trial court should scrutinize the defendant’s motion for signs of “a realistic basis,” and if the motion appears to have merit, “ ‘then the trial in the exercise of its discretion should set the matter for hearing and appoint counsel to represent the defendant. . . .’ [Citation omitted.]” 252 Kan. 767.
As to Kirby’s claim that the trial court should have held a separate hearing on the issue of ineffective assistance of counsel, we recently stated:
“When faced with either a motion to correct an illegal sentence or a motion alleging ineffective assistance of counsel, the district court is to make a preliminary examination to determine whether substantial questions of law or fact are raised, and if the findings are in the negative, the court may summarily deny the motion. The decision concerning whether to hold an evidentiary hearing on a motion to correct an illegal sentence is subject to an abuse of discretion standard.” State v. Davis, 271 Kan. 892, Syl. ¶ 1, 26 P.3d 681 (2001).
Therefore, we review the actions of the trial court for an abuse of discretion in summarily denying his motion for a new trial based on ineffective assistance of counsel and not appointing separate counsel when it determined Kirby’s motion lacked merit.
B. Alternative claim that Kirby was denied effective assistance of counsel at trial.
Kirby’s second assertion of error is that he was denied effective assistance of counsel and should be granted a new trial. This court must necessarily review the trial court’s determination in this regard as mentioned above.
“Before counsel’s assistance is determined to be so defective as to require reversal of a conviction, defendant must establish (1) counsel’s performance was deficient, which means counsel made errors so serious that counsel’s performance was less than that guaranteed by the Sixth Amendment, and (2) the deficient performance prejudiced the defense, which requires showing counsel’s errors were so serious they deprived defendant of a fair trial.” State v. Hedges, 269 Kan. 895, 913, 8 P.3d 1259 (2000).
Kirby’s pro se pleading for a new trial stated:
“10) Ineffective assistance of counsel caused prejudice to defendant in the following ways:
A. Failure of counsel to bring up victim’s past in regards to her violent history.
B. Failure to put subpoenaed witnesses on the stand in support of defense.
C. Failure to comply with defendant’s request to pursue certain issues defendant believes crucial to his defense.”
A more thorough discussion of the issues Kirby has complained of was presented to the court at the hearing. There, counsel for Kirby stated:
“According to the diligence rule, 1.3 in the Kansas Courtroom Rules and Procedures, a lawyer should pursue a matter on behalf of client despite opposition, instruction or person’s inconvenience to the lawyer and take whatever measures required if indicated client’s causes of endeavor.
“Victim had numerous assault and battery charges on both male and female and had been ordered by the Court to complete anger control classes. Defendant states this information could have helped the jury get a profile of the victim’s tendencies.
“Defendant claims prejudice by counsel issuing subpoenas to witnesses for defense, to wit: Mark Gaskel (phonetics) and Tony Baird (phonetics).
“Mark Gaskel would have given testimony that would have impeached the testimony given by the State’s witness, to wit: Lori Packer, thus affecting the credibility of Ms. Packer.
“Mr. Baird’s testimony would have discredited Michael Weddington’s testimony in regard to the incident in Overland Park. Mr. Baird’s testimony would have shown the victim as the aggressor, not the defendant.
“Finally, defendant claims prejudice by counsel’s refusal to pursue issues crucial to the defense of the defendant. Defendant wanted counsel to compare the time of arrival by the police officers to the length of supposed beating — of the supposed beating that the State’s witnesses, to wit: Lori Packer, testified to. The defendant relies on State «. Clark in that the comparison in time would show a lack of malice and intent to support the charge.
"Counsel also failed to cross-examine an Overland Park police officer in regards to the tire tracks at the scene of the incident that the officer testified to which would influence testimony given about the defendant trying to run the victim over.
"In closing, the counsel of defendant refused to question State witness, to wit: Janee Grote, in regards to the victim falling on the coffee table. That may have caused the broken ribs that were not discovered by two examinations performed at Kansas University Medical Center which State’s witness, to wit: Dr. Mitchell, ruptured victim’s spleen which resulted and caused the defendant [sic] thus persuading die jury that defendant was not responsible for cause of death.”
The trial court reviewed Kirby’s claims and found that the only way for counsel to properly bring out Karen’s violent history was for Kirby to claim self-defense, which was not the case here. As to the allegation that counsel failed to subpoena witnesses, the court said:
“[A]gain, I believe that that goes to the issue of trial strategy in this particular case. What witnesses to call and what witnesses not to call are basically within the sound discretion of the defense counsel in this particular case. You have to weigh what that witness is going to testify to, what the effect of that testimony is going to be, whether that would be beneficial or harmful. And I have not heard anything that there was any critical evidence here that was kept from these jurors, and I would defer to [defense counsel’s] judgment as to what witnesses to call and what witnesses not to call.”
The trial court also found that the failure to concentrate on the length of time that the beating took place was an issue of trial strategy. The court concluded that counsel for Kirby was very effective in arguing the case to the jury, and noted that although Kirby was charged with premeditated first-degree murder, the jury found him guilty of unintentional second-degree murder. Therefore, the trial court denied Kirby’s motion for a new trial.
Reasonable minds could agree with the trial court that the motion had no reasonable basis. The trial court did not abuse its discretion in finding that the performance of Kirby’s trial counsel was not deficient and that Kirby was not prejudiced or deprived of a fair trial. Thus, Kirby’s claim of ineffective assistance of counsel fails.
C. Failure to conduct an evidentiary hearing on claim that jurors were dozing during portions of the trial.
Kirby contends that because the Sixth and Fourteenth Amendments to the United States Constitution require that a criminal defendant not be tried by a juror who cannot comprehend testimony, the court also erred in failing to conduct an evidentiary hearing “to determine what and how much of the testimony may have been lost on the jury.”
“The Sixth Amendment to the United States Constitution guarantees that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury.” State v. Jenkins, 269 Kan. 334, 337, 2 P.2d 769 (2000).
“An appellate court’s review of an order denying a motion for a new trial or a motion to recall a jury is limited to whether the trial court abused its discretion. If a defendant’s constitutional right has been violated during a trial, a judge’s discretion to deny a motion for a new trial or a motion to recall a jury is limited. At this point, there is a greater reason for the judge to articulate the reasons for his or her ‘discretionary’ decision. A trial court abuses its discretion when it denies a motion for a new trial based on juror misconduct if the defendant can show that (1) an act of the jury constituted misconduct and (2) the misconduct substantially prejudiced the defendant’s right to a fair trial. [Citation omitted.]” 269 Kan. at 338.
Kirby’s concerns over the inattentiveness of jurors seven and nine during portions of the trial were brought to the attention of the trial court. Both attorneys and the judge remembered having a bench conference on the matter, but Judge Boeding and counsel for the State noted that only one juror was dozing. In regard to the issue of juror inattentiveness, Judge Boeding stated:
“This issue about the jurors sleeping, it was brought to the Court’s attention during the course of the trial that one juror appeared to be nodding off. The record I think should reflect if it doesn’t already that this courtroom was extremely hot during most of that trial and the temperature in the courtroom — I mean — and I did keep a fairly close eye on the jurors. I always do that, and particularly when it is warm. We did have that one incident, I kind of watched that particular juror and he was an individual that tended to close his eyes as he was listening. But at one point it did appear that he may have nodded off for a moment, and I think we took that appropriate action. And thereafter there was certainly no one that I observed who was not paying attention and certainly nothing was brought to the Court’s attention.”
On appeal, Kirby cites State v. Hayes, 270 Kan. 535, 17 P.3d 317 (2001), to support his argument that the Constitution requires that a criminal defendant not be tried by a juror who cannot comprehend testimony. In that case, the defendant moved for a mistrial during jury deliberation after a juror requested a copy of the transcript of the defendant’s testimony. This court reversed the trial court’s denial of defendant’s motion for a mistrial, finding that the defendant’s constitutional rights to an impartial jury and due process were infringed because the juror specifically stated that he could not hear any of the defendant’s testimony, and the trial court failed to cure the error by performing a “readback” of testimony. 270 Kan. at 540.
The State argues that because no contemporaneous objection was raised at trial, Kirby should be deemed to have waived his argument. While the State would be correct in regard to the admissibility of evidence, such is not the case when the issue is juror misconduct.
Here, there was no statement by the juror that he did not hear testimony. The trial court was aware of the juror’s tendency to close his eyes as he listened, kept an eye on the juror, and took a recess when it appeared that the juror was dozing off. Unlike the juror in Hayes who heard no part of the defendant’s testimony, the trial court characterized the length of time the juror dozed here as mo mentary and the judge did not observe any further dozing incidents following the recess.
Therefore, we find that the trial court did not abuse its discretion when it denied Kirby’s motion for a new trial based on juror misconduct.
Affirmed.
Davis, J., not participating.
Brazil, Chief Judge Retired, assigned. | [
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|
The opinion of the court was delivered by
Lockett, J.:
Employee appeals the district court’s grant of summary judgment in favor of the employer in the employee’s retaliatory discharge action.
Dixon Industries, Inc. (Dixon) instituted a drug testing policy in 1988 for the stated purpose of providing employees a safe and productive work place and providing customers with products of the highest quality. Under Dixon’s drug testing policy, all prospective new hires were required to submit to preemployment alcohol and drug testing. Dixon also required employees to consent to alcohol and drug testing in certain circumstances, such as when there was an on-the-job accident involving the employee or when any employee was sent to the company doctor or hospital. Written consent was required prior to testing. Under the policy, any employee who tested positive or admitted to being under the influence of alcohol or drugs was terminated.
Ruth Bracken, an employee of Dixon for 18 years, complained to her supervisor in December 1994 that she was having pain in her hands and arms. Bracken did not request medical treatment. On April 12,1995, Bracken asked her supervisor for time off to go to her doctor regarding the pain in her arms and hands. Her supervisor recommended that Bracken see a company doctor. Bracken made an appointment with and saw a company doctor for her complaint.
Previously, in May 1990, Bracken had visited the company doctor as a result of a work-related injury. Bracken was aware of the employer’s no drug policy and consented to alcohol and drug testing. The result at that time was negative.
When Bracken arrived at the doctor’s office on April 12, 1995, the doctor took a urine sample for purposes of drug testing. The prehminary immunoassay analysis came back positive for cannabis. When Dixon received the positive drug test result, it requested a confirmatory test. The second test, a chromatography/mass spectrometry test also came back positive for cannabis.
Bracken admitted to her employer that she had smoked marijuana the night before she went to the company doctor. Pursuant to company rules, on April 21, 1995, Bracken was discharged because she had tested positive for marijuana.
Bracken claimed she was a good employee; therefore, the positive drug test was not the real reason she was discharged.
Bracken filed a retaliatory discharge claim against Dixon. Bracken claimed she was a good worker and had been discharged because her employer anticipated she was going to file a workers compensation claim. The employer asserted Bracken was terminated because she had violated its no drug policy. The district court noted that the material facts were not in dispute, found that Bracken had been discharged because she had violated the employer’s no drug policy and, following the rationale in Lay v. Horizon/CMS Healthcare Corp., 60 F. Supp. 2d 1234 (D. Kan. 1999), granted Dixon’s motion for summary judgment.
Summary Tudgment
Summary judgment is appropriate when the pleadings, deposi tions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
Bracken claims that Dixon fired her because of her on-the-job injury and in anticipation of her filing a workers compensation claim. To prevail on a retaliatory discharge claim the employee must be within the exception to the common-law doctrine of employment at will. Under the employment-at-will doctrine, an employer can terminate an employee “for good cause, for no cause, or even for a wrong cause, without incurring liability to the employee for wrongful discharge.” Morriss v. Coleman Co., 241 Kan. 501, 508, 738 P.2d 841 (1987). One exception to the employment-at-will doctrine is recognized when an employee is discharged in retaliation for filing a workers compensation claim, Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981), or in anticipation of the employee filing a workers compensation claim, Coleman v. Safeway Stores, Inc., 242 Kan. 804, 752 P.2d 645 (1988).
To establish a typical prima facie case of retaliatory discharge, the plaintiff must show (1) he or she filed a claim for workers compensation benefits or sustained a work-related injury for which he or she could assert a future claim for such benefits; (2) the employer had knowledge of the plaintiffs compensation claim or the fact that he or she had sustained a work-related injury for which he or she could file a future claim for benefits; (3) the employer terminated his or her employment; and (4) a causal connection existed between the protected activity or injury and ,the termina tion. Huffman v. Ace Elec. Co., Inc., 883 F. Supp. 1469, 1475 (D. Kan. 1995); Chaparro v. IBP, Inc., 873 F. Supp. 1465, 1472 (D. Kan. 1995); Rosas v. IBP, Inc., 869 F. Supp. 912, 916 (D. Kan. 1994). Proof of a prima facie case raises “ ‘a rebuttable presumption’ ” of a retaliatory intent. See Ingels v. Thiokol Corp., 42 F.3d 616, 621 (10th Cir. 1994) (quoting Branson v. Price River Coal Co., 853 F.2d 768, 771 [10th Cir. 1988]); Rosas, 869 F. Supp. at 916.
There is no dispute that the first three elements of a prima facie case are present here. Bracken contends the fourth element, a causal connection between the protected activity or injury and her termination, involves material disputed facts. According to Bracken, Dixon’s motive for firing her is a question to be decided by a trier of fact.
Kansas has adopted the burden-shifting approach applied in discrimination cases for use in analyzing state-law retaliatory discharge claims. Ortega v. IBP, Inc., 255 Kan. 513, 526, 874 P.2d 1188 (1994). Once the plaintiff employee establishes a prima facie case, it becomes the employer’s burden to produce a legitimate, nondiscriminatoiy reason for the discharge. Huffman, 883 F. Supp. at 1475.
To avoid summary judgment after the employer provides its reason for the discharge, the employee must assert specific facts establishing a triable issue as to whether the employer’s reason for discharge is a mere cover-up or pretext for retaliatory discharge. Rea v. Martin Marietta Corp., 29 F.3d 1450, 1455 (10th Cir. 1994). “If no facts relating to the pretextuality of the defendant’s action remain in dispute, summary judgment is appropriate.” Hooks v. Diamond Crystal Specialty Foods, Inc., 997 F.2d 793, 798 (10th Cir. 1993), overruled in part on other grounds Buchanan v. Sherrill, 51 F.3d 227, 229 (10th Cir. 1995). On the other hand, should the plaintiff come forth with a prima facie case and evidence that the defendant’s reasons are pretextual, the case must go to the jury. Jones v. Unisys Corp., 54 F.3d 624, 630 (10th Cir. 1995).
In a retaliatory discharge action for the filing of a workers compensation claim, the plaintiff need not present evidence that is clear and convincing in nature at the summary judgment stage. Plaintiff can successfully oppose a motion for summary judgment by a preponderance of the evidence. See Ortega, 255 Kan. at 519.
A plaintiff can avoid summary judgment by showing a pattern of retaliatory conduct beginning with the filing of a workers compensation claim to termination, notwithstanding such conduct predates the period of limitation for such action. Rebarchek v. Farmers Coop. Elevator & Mercantile Ass’n., 272 Kan. 546, Syl. ¶ 6, 35 P.3d 892 (2001).
Before this court, Bracken asserts the following facts, viewed in the light most favorable to her, show a causal relationship between the exercise of her rights and her termination, meeting the elements of a prima facie case of discrimination. Dixon asserts that Bracken’s evidence of a causal connection is based only on her thoughts and beliefs. See Blackwell v. Shelter Mwt. Ins. Co., 109 F. 3d 1550 (10th Cir. 1997) (An employee’s beliefs and feelings were insufficient to establish the required nexus between the employee’s discharge and any protected activity.).
First, Bracken claims that the timing of the drug testing with her eventual termination is suspect. Bracken had been a good employee for more than 18 years and had work-related injuries before but had never filed a workers compensation claim. According to Bracken, the injury that caused her to be fired actually occurred in December 1994 and she was not tested for drug use until April 1995 when she requested workers compensation benefits. Dixon argues that timing alone is insufficient to establish a causal connection. Dixon points out that Bracken was not tested in December 1994 because she did not go to the company doctor. Dixon notes Bracken knew she would be drug tested if she went to the company doctor because she had previously been drug tested. Bracken admitted she smoked marijuana the night before, but did not think it would show up on the test results. Dixon asserts that under the circumstances, it had no reason to suspect Bracken would test positive for drugs.
Second, Bracken claims she was forced to see the company doctor after she asked for time off to see her own doctor; therefore, she had not consented to the drug test. Dixon points out that Bracken knew if she went to her own doctor she could still file a workers compensation claim. It further noted that after she was terminated, Bracken continued to see the company doctor. Dixon argues that Bracken consented to the drug test.
Third, Bracken claims there was no evidence that Dixon consistently applied its drug policy and that the policy discriminates against injured workers. Under the policy, according to Bracken, the discipline for more serious offenses, such as working under the influence, can be merely disciplinary action up to and including discharge. Dixon asserts that it consistently applied its drug policy and that Bracken was fired for violating the drug policy by testing positive for drugs.
Bracken asserts there is a causal connection, because regardless of the severity of an accident at Dixon, as long as an injured employee does not seek workers compensation benefits, the employee is not drug tested. Dixon argues that this assertion twists the company’s drug policy. Dixon stated that the trigger for a drug test is a visit to the company doctor, not the filing of a workers compensation claim.
Finally, Bracken alleges that Dixon attempted to deprive her of her legitimate workers compensation claim by falsely informing the insurance company that she did not timely report her injury, attempting to establish that she was not injured at work, and falsely depicting her job duties. Dixon contends this argument is based on misconstrued testimony. Dixon did not falsely inform the insurance company that Bracken had not timely reported her injury. Dixon merely testified that it did not report Bracken’s claim as of December 15, 1994, because Bracken had not received medical treatment. Furthermore, it was Dixon’s insurance company that requested a fist of Bracken’s job duties. In response to that request, Dixon prepared a jobs fist and responded that it did not appear that Bracken had engaged in repetitive type work.
We note that Bracken was aware of Dixon’s no drug policy. She was aware that she would be tested for drugs when she went to the company doctor. Bracken did not believe the marijuana she smoked the night before would show up on her drug test. In addition, Dixon was unaware that Bracken would test positive for drugs.
There is evidence that at least one other Dixon employee had tested positive for drugs and had been discharged. There were no known instances where an employee tested positive for drugs and was not discharged by the employer.
The material facts were not in dispute. Dixon has a drug testing policy which it uniformly applies to its employees. Bracken chose to go to the company doctor, thus triggering the drug testing. Bracken’s drug test was positive. She was terminated because she tested positive. There is no inference of discriminatory intent in Dixon’s actions. Even viewing the evidence in the light most favorable to Bracken, Bracken fails to show any evidence of substance which suggests Dixon’s drug testing policy was used as a pretext for terminating employees who avail themselves of workers compensation benefits.
Affirmed.
Davis, J., not participating.
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The opinion of the court was delivered by
Allegrucci, J.:
This is an interlocutory appeal from the district court’s granting of partial summary judgment on the wrongful death claim in a wrongful death and personal injury action arising out of a vehicle collision. Defendant, Jonathan Panure, was the driver of the vehicle in which his mother, Rhonda Alfrey, and her daughters, Hanna and Emily Alfrey, were riding. Rhonda Alfrey died and her two daughters were injured as a result of the collision. The district court granted partial summary judgment in favor of Panure on the wrongful death claim. The Court of Appeals granted plaintiffs’ application for interlocutory appeal. See K.S.A. 60-2102(b). The case was transferred to this court pursuant to K.S.A. 20-3018(c).
Material facts are not disputed. On June 7,1997, Rhonda Alfrey and her daughters, Hanna and Emily, were passengers in a vehicle owned by Rhonda and driven by Jonathan Panure when it collided with another vehicle. Rhonda was the natural mother of Jonathan as well as Hanna and Emily.
At the time of the June 1997 collision, Rhonda was over the age of 18 years, was a licensed driver in the State of Kansas, and had been a licensed Kansas driver for more than one year. Jonathan was a licensed driver in the state of Kansas under the age of 16 years. At the time of the collision, Jonathan was driving Rhonda’s vehicle on a highway with her permission and with her seated in the front passenger seat. The license he held allowed him to lawfully operate the vehicle in the circumstances.
An account of the accident was included in Panure’s motion for summary judgment but was not made a part of the statement of uncontroverted facts. It was not disputed in the plaintiffs’ response to the motion for summary judgment. Panure stated that he was driving the family home after attending a track meet in Great Bend. William Elder was driving a pickup coming from the opposite direction. Mr. Elder fell asleep, and his pickup crossed into defendant’s lane of traffic. Defendant attempted to avoid a head-on collision by slowing and moving his vehicle into the opposite, southbound lane, but Mr. Elder awoke, jerked his pickup back into the southbound lane, and a head-on collision ensued. Rhonda Alfrey died instantly.
The sole question is whether K.S.A. 8-222 bars the wrongful death claim against the minor driver, Panure. K.S.A. 8-222 provides:
“Every owner of a motor vehicle causing or knowingly permitting a minor under the age of sixteen years to drive such vehicle upon a highway, and any person who gives or furnishes a motor vehicle to such minor, shall be jointly and severally liable with such minor for any damages caused by the negligence of such minor in driving such vehicle.”
The district court read Smithson, Executor v. Dunham, 201 Kan. 455, 441 P.2d 823 (1968), as indicating that K.S.A. 8-222 applies in circumstances like those in the present case. The district court stated: “K.S.A. 8-222 clearly imputes whatever negligence [Jonathan] may have to the decedent, who permitted defendant, a minor then under the age of 16, to drive the vehicle upon a highway. Likewise, K.S.A. 60-258a(a) imputes the decedent’s negligence to plaintiffs, thereby barring plaintiffs’ wrongful death claim against defendant.” Recognizing that Smithson was decided before comparative fault was adopted by Kansas courts so that the precise question in this case had not been answered by an appellate court, the district court certified its ruling for an immediate appeal.
The facts are stipulated or admitted, and the issue is one of statutory construction. Thus, the court’s review is unlimited. See Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998); Lightner v. Centennial Life Ins. Co., 242 Kan. 29, Syl. ¶ 1, 744 P.2d 840 (1987).
On appeal, plaintiffs argue that Smithson is not viable since the adoption of comparative fault. They acknowledge that Davey v. Hedden, 260 Kan. 413, 920 P.2d 420 (1996), applied K.S.A. 8-222 long after the adoption of comparative fault and contend that it should be disapproved.
Smithson was a wrongful death action by the executor of the will and husband of the decedent, Marvella Smithson, against Dillard Dunham. It arose out of a collision at a rural intersection of vehicles driven by Dunham and William Smithson, the son of Marvella Smithson and plaintiff, Wayne Smithson. William was 15 years of age and the holder of a restricted driver’s license at the time of the accident. His mother was a passenger in the car driven by William, who, by his own testimony, was negligent. He entered the intersection after Dunham already was in it at 55 miles per hour without slowing or applying his brakes. The court concluded that 8-222 barred Wayne Smithson’s recovery for the death of Marvella:
“We hold that where a parent occupies a seat beside an under age driver, under the undisputed facts and circumstances as established in this case, the negligence of such under age driver, if it contributes to or proximately causes an accident, bars recovery from a third party for injuries or death of such parent.” 201 Kan. at 462.
Wayne Smithson’s suit against Dunham was defeated by his son’s negligence and the combined operation of two statutes. William’s negligence was imputed by K S.A. 8-222 to his mother because she permitted William to drive the vehicle, and the wrongful death statute, K.S.A. 60-1901, permits an action only where the decedent could have maintained one. K.S.A. 60-1901 provides: “If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had . . . she lived, in accordance with the provisions of this article, against the wrongdoer . . . .” Marvella Smithson, with her son’s negligence imputed to her, could not have maintained an action against Dunham. Hence, Wayne Smithson’s action against Dunham was barred.
Smithson was decided in 1968. Six years later the Kansas Legislature passed an act concerning tort liability that abolished contributory negligence as a bar to recovery and instituted comparative negligence. K.S.A. 60-258a provides:
“(a) The contributory negligence of any party in a civil action shall not bar such party or such party’s legal representative from recovering damages for negligence resulting in death, personal injury, property damage or economic loss, if such party’s negligence was less than the causal negligence of the party or parties against whom claim for recovery is made, but the award of damages to any party in such action shall be diminished in proportion to the amount of negligence attributed to such party. If any such party is claiming damages for a decedent’s wrongful death, the negligence of the decedent, if any, shall be imputed to such party.” (Emphasis added.)
Construing 60-258a in Brown v. Keill, 224 Kan. 195, 203-04, 580 P.2d 867 (1978), the court held that the traditional concept of joint and several liability in negligence actions had been abrogated. The core concept of joint and several liability is indivisible responsibility. Hence, each joint tortfeasor was considered to be entirely liable for the harm. The traditional concept of joint and several liability required a plaintiff to be totally without negligence to recover and required a defendant to be merely negligent in order to incur an obligation to pay. 224 Kan. at 203. That all-or-nothing rule was removed from comparative negligence actions in favor of the individual liability of each defendant for payment of damages being based on his or her proportionate fault. 224 Kan. at 204.
Once the harsh rule was softened with the adoption of comparative negligence principles, Kansas courts were asked to formulate approaches that harmonized with the current tort theory in varying circumstances. Joint and several liability continues to apply in a few situations, for example, where created by the terms of a contract, note, or mortgage, See Jenkins v. T.S.I. Holdings, Inc., 268 Kan. 623, 635, 1 P.3d 891 (2000), and in intentional tort actions, see York v. InTrust Bank, N.A., 265 Kan. 271, 310-11, 962 P.2d 405 (1998).
The factual circumstances in Davey v. Hedden were exceptional. Davey was a personal injury action by a minor passenger who had permitted another minor to drive the vehicle; neither passenger nor driver was authorized by the vehicle’s owner, and no other vehicle was involved in the collision from which plaintiffs injuries resulted. Jason Davey, age 15, obtained permission from Jon Hedden, age 14, to drive a vehicle that belonged to Hedden’s parents, who were on vacation in Hawaii. Davey took Catherine Farnsworth, age 15, with him as a passenger and eventually let her drive. Farnsworth lost control of the vehicle and struck a tree. Davey suffered severe injuries.
Davey sued a number of defendants on a number of theories. Davey’s claim of negligent entrustment against the vehicle owners was decided by summary judgment in favor of the owners and was a focus of the majority opinion and the subject of a concurring opinion. The other issue on appeal was Davey’s contract claim against Farmers Alliance Mutual Insurance Company seeking to enforce the uninsured motorist provisions of the policy on the borrowed vehicle. For this purpose, Davey alleged negligent driving against Farnsworth. The trial court found that Farnsworth was 100% at fault and granted summary judgment to the insurance carrier on the ground that no claim could be made under the uninsured motorist clause because the uninsured driver, Farnsworth, had no liability to Davey pursuant to K.S.A. 8-222. Her negligence was imputed to Davey under the statute. The central question pre sented to this court with regard to Davey s claim against the insurer of the vehicle was whether one minor who permits another minor to drive would be barred from recovering from the driver for injuries caused by the driver’s negligence. Davey did not “dispute that he would be hable along with Farnsworth if they had caused injuries to another person.” 260 Kan. at 419. The court concluded that “under a plain reading of the statute, ‘any person’ includes a minor” and “that neither logic nor absurdity suggests that the provisions of K.S.A. 8-222 should not apply between persons occupying the same automobile.” 260 Kan. at 425. Davey’s various other theories about the inapplicability of K.S.A. 8-222 when the passenger sues the minor driver also were rejected by the court.
As the district court observed in certifying its ruling in the present case for an intermediate appeal, the court has not been asked to consider the operation of K. S. A. 8-222 in a wrongful death action since the adoption of comparative negligence. Nor has the court been asked squarely to face the question of whether the operation of K.S.A. 8-222 was altered with the shift to comparative fault.
Plaintiffs in this case first suggest that a literal reading of K.S.A. 8-222 would be in harmony with comparative fault principles. The statute provides that persons permitting a minor to drive on a highway “shall be jointly and severally liable with such minor for any damages” caused by the minor’s negligent driving. Plaintiffs contend that the statute imputes liability for damages rather than imputing negligence. Giving the statute a literal reading in the circumstances of this case, however, does not benefit the plaintiffs. They sued only Panure. K.S.A. 8-222 would impute Panure’s liability for damages to the deceased. Decedent, therefore, would have no recovery from Panure. K.S.A. 60-1901 provides that a wrongful death action against the wrongdoer may be maintained for the damages resulting from the wrongful act of another if the decedent might have maintained the action had he or she lived. Rhonda Alfrey, had she lived, would not have had an action for damages against Panure because his liability for damages would be imputed to her by K.S.A. 8-222.
In addition to its . lack of practical effect, the obvious weakness of plaintiff s argument is that the court rejected a very similar theory in Davey.
“According to the defendants, the Kansas statute does not ‘impute’ negligence but instead imposes joint and several liability.
“While K. S. A. 8-222 does not expressly say that it imputes the negligence of the minor driver to the person who provided the car, the statute’s effect is to do just that. See Gatz, 180 Kan. at 17 (holding that ‘under the statute [the] liability of die owner arises from the negligence of the minor who is permitted to drive’). Smithson, 201 Kan. at 462, with its finding that the negligence of the underage driver bars die owner from recovery, also makes this clear. Under K.S.A. 8-222, any person who furnishes a motor vehicle to a minor shall be joindy and severally liable with the minor for any damages caused by the negligence of the minor in driving the vehicle. The effect of the statute is imputation of the negligence of the minor driver to the one furnishing the vehicle.” 260 Kan. at 421.
Plaintiffs would have the court distinguish Davey from the present case on the facts. According to plaintiffs, Davey involved the type of conduct the statute was intended to discourage — unauthorized driving by a minor. In contrast, plaintiffs argue, there was nothing unauthorized or unlawful about Panure’s operation of the vehicle with his mother in the seat beside him. The statute, however, does not make joint and several liability of the person who furnishes a vehicle dependent on the legality of the minor’s driving status. As we noted in Davey, the legislative intent was to attach liability to one who permits a minor less than 16 years of age to drive an automobile.
The plaintiffs also argue that Kansas courts would be out-of-step with the law of all other states if in the circumstances of the present case they would impute negligence of the driver to the owner/ passenger of the vehicle. Plaintiffs direct the court’s attention to an annotation at 21 A.L.R.4th 459, 460, which
“collects and discusses the state and federal cases in which the courts have considered whether the mere fact that a passenger in a motor vehicle is its owner affects his right to recover from the driver of the vehicle for personal injuries or death which result from negligent operation of the vehicle by the driver.”
Plaintiffs cite several dozen cases from the annotation in which the owner/passenger’s actions against the driver were not precluded.
Although somewhat related to the subject at hand, the annotation relied on by plaintiffs does not include a discussion specific to an owner/passenger’s joint and several liability for damages resulting from a minor driver’s negligence, which is the only issue in the present case. By the same token, the cases taken from the annotation and discussed by plaintiffs in their brief are not on point.
An annotation at 69 A.L.R.2d 978 discusses cases involving legislation making it an offense to permit an unauthorized person to operate a vehicle and cases “dealing with statutes making one who owns or controls a motor vehicle jointly and severally liable with a minor under a specified age allowed to operate the motor vehicle, even though such statutes may not contain an explicit provision specifying that the minor be an unauthorized operator.” 69 A.L.R.2d at 979. A majority rule for cases with circumstances similar to the present one cannot be abstracted from the latter annotation. In fact, there are no annotated cases with facts substantially similar to those of the present case.
Plaintiffs also bring to the court’s attention cases and statutes from Iowa, Kentucky, Delaware, Utah, and Maine. Plaintiffs’ point is that statutes very similar to K.S.A. 8-222 have been construed by the courts of these other states as applying only in actions by third parties, not to actions between the vehicle owner and the minor driver. The basis for the decisions, according to plaintiffs, is that the legislative purpose in enacting the statutes was protection of third parties. Plaintiffs urge this court to follow the examples of these other states in overruling Smithson and Davey and announcing a rule that would apply K.S.A. 8-222 only to actions by third parties against the vehicle owner.
Plaintiffs suggest that this court might use Stuart v. Pilgrim, 247 Iowa 709, 74 N.W.2d 212 (1956), as a blueprint for overruling previous decisions. In Stuart, the plaintiff s vehicle was driven with her consent by her husband, John Stuart. It collided with a vehicle driven by the defendant, from whom plaintiff sought personal injury damages. In previous cases, Iowa courts had followed the rule without discussion that contributory negligence of the driver is imputed to the owner who was present in the vehicle. 247 Iowa at 713. The court concluded that “more mischief will be done by adhering to the precedent established in [an earlier case] than by overruling it. It proceeds upon a wrong principle, built upon a false premise, and arrives at an erroneous conclusion.” 247 Iowa at 714. Thus, a new rule was established in Stuart. It may be noted that the Iowa court subsequently modified the Stuart rule following legislative changes to the Iowa statute. See Perry v. Tendal, 538 N.W.2d 296, 298 (Iowa 1995).
In addition to arguing that K.S.A. 8-222 should be applied only to third-party actions against the vehicle owner, plaintiffs also seem to argue that K.S.A. 8-222 should be construed as applying only to third-party actions. Their suggestion, at least as we understand it, would not alter the result in this case because their action is a third-party action. They brought this action against Panure, the minor driver, for the wrongful death of their mother, the person who permitted the minor to drive. In order for a ruling that limited the scope of 8-222 to third-party actions to benefit plaintiffs, the ruling would have to be formulated to exclude application of 8-222 to third-party actions in which the cause of action derives from an action that might have been maintained by the permitting adult. In the present case, for example, the plaintiffs have a cause of action by virtue of K.S.A. 60-1901, which provides that a wrongful death action may be maintained if the deceased could have maintained the action had he or she lived.
If K.S.A. 8-222 is construed as applying only to third-party actions but not to third-party actions derived from an action that the permitting adult might have maintained against the minor driver, as in the present case, the entry of summary judgment against plaintiffs would be reversed. Without the operation of K.S.A. 8-222, the minor driver’s negligence would not be imputed to the deceased, and an action by the deceased against the minor driver would be maintainable. Hence, plaintiffs would be able to maintain an action against the minor driver pursuant to K.S.A. 60-1901 because the decedent has no negligence to be imputed to the plaintiffs. The fallacy of plaintiffs’ argument is that there is nothing in the language of the statute or cases interpreting the statute that indicates a legislative intent to lift application of 8-222 from derivative third-party actions, or any third-party actions for that matter.
In addition, if K.S.A. 8-222 is construed, as plaintiffs suggest, as imputing liability for damages rather than imputing negligence from a minor driver to the consenting adult, plaintiffs in the present case have no one from whom to recover. The only defendant named is the minor driver, Panure. If his liability for damages is imputed to the deceased through the operation of K.S.A. 8-222, and the decedent’s liability for damages is imputed to plaintiffs through the operation of 60-258a(a), even if Panure’s percentage of fault is slight compared to that of the other driver so that only a small percentage of the total fault is imputed by 60-258a(a) to the deceased, that imputed fault cancels any recovery because Panure is the only named defendant. If Panure bears no fault, plaintiffs cannot recover from him for that reason.
In summary, we conclude that the operation of K.S.A. 8-222 was not altered or negated by the adoption of comparative fault. This court’s rationale in Smithson is compatible with the principles of comparative negligence. We further disagree with the plaintiffs that Davey should be disapproved. The legislative intent in adopting 8-222 was obviously to make those persons hable who permit a minor under 16 years of age to drive a motor vehicle. In Davey, we interpreted 8-222 as imputing the negligence of the minor driver to the consenting adult. It does not matter whether the negligence is designated comparative or contributory. The effect may be different in that under the all-or-nothing rule of contributory negligence, the slightest fault would bar recovery.
Here, under K.S.A. 8-222, Panure’s percentage of negligence is imputed to the decedent, Rhonda Alfrey, which by operation of K.S.A. 60-258a is then imputed to the plaintiffs. The plaintiffs would not be barred from recovery if their negligence is less than the negligence of the parties against whom the claim for recovery is made. Since Panure is the only party named defendant in the wrongful death action, plaintiffs cannot recover. The trial court did not err in granting defendant’s motion for partial summary judgment.
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The opinion of the court was delivered by
Lockett, J.;
Appellant challenges the district court’s denial of his motion to correct an illegal sentence.
On March 30,1983, Lewis Jones, Jr., was convicted of one count of robbery and one count of kidnapping. Prior to sentencing, the State notified Jones of its intent to request imposition of the Habitual Criminal Act.
At the sentence hearing, the district court admitted records and fingerprint cards from the United States Penitentiary at Leavenworth and, over defendant’s objection, similar records from the Kansas State Industrial Reformatory at Hutchinson. Richard Cook, latent print examiner for the Wichita Police Department, testified that he rolled Jones’ fingerprints on April 21,1983, and compared Jones’ fingerprints with the fingerprint cards from other institutions. Cook testified that the fingerprint impressions he rolled from Jones matched the fingerprint cards from the State’s exhibits.
Based on the records and fingerprint cards, the district court found that Jones had two prior felonies: an armed robbery in Hutchinson, Kansas, and a conspiracy to commit bank robbery in Chetocah, Oklahoma. The district court sustained the State’s motion to impose the Habitual Criminal Act and sentenced Jones to 45 years to life on the kidnapping count and 15 to 60 years on the robbeiy count, to run concurrently.
On February 10, 2000, approximately 17 years after his conviction, Jones filed a motion to correct an illegal sentence pursuant to K.S.A. 22-3504. An “illegal sentence” is either a sentence imposed by a court without jurisdiction; a sentence which does not conform to the statutory provisions, either in the character or the term of the punishment authorized; or a sentence which is ambiguous with respect to the time and manner in which it is to be served. State v. Frazier, 248 Kan. 963, 811 P.2d 1240 (1991). The Supreme Court has general statutory jurisdiction to correct, modify, vacate, or reverse any act, order, or judgment of a district court in order to assure that any such act, order, or judgment is just, legal, and free of abuse. K.S.A. 60-2101(b). The court has specific statutory jurisdiction to correct an illegal sentence at any time. K.S.A. 22-3504. State v. Scherzer, 254 Kan. 926, 869 P.2d 729 (1994). Jones claimed that (1) neither the journal entry nor the court’s records contain the evidence relied upon to impose the Habitual Criminal Act, and (2) because the journal entry does not indicate that he was represented by counsel in the two prior felonies, it failed to comply with K.S.A. 22-3426(a) (Ensley 1981).
At the hearing to determine if Jones had been illegally sentenced, the State advised the district court that the records and fingerprint cards from the United States Penitentiaxy at Leavenworth and the Kansas State Industrial Reformatory at Hutchinson had been lost or destroyed and, therefore, could not be produced at the hearing. The district judge took judicial notice that the procedure in Sedgwick County regarding exhibits is that exhibits are not generally kept as part of the court record after the court reporter records the exhibits.
The judge stated:
“The law’s very clear that there’s a presumption of regularity in a court’s findings, and the law’s also clear that the journal entry of judgment is merely — I shouldn’t say merely but — it is — it is merely symbolic of the court’s ruling, that the court’s ruling is really contained in the transcript of the hearing.
“And I find the fact that tire journal entry entered on this — in this case, the one that was filed on May the 5th of ‘83, is not controlling. It wouldn’t be controlling if it was adequate, if on its face it showed that what Mr. Intagliata’s complaining of now had been the court’s finding. It’s what the judge really said at the time of the hearing that controls.
“I’ll find that, as a matter of law, that the statute — that neither the statute nor the case law require a sentencing judge to make findings in a one, two, three, four fashion as that’s set out in the statute book.
“I’m sure on appeal the Court of Appeals will at a minimum say that’s the better practice and that’s the way it oughta be done. But I don’t think the Court of Appeals and/or the Supreme Court are going to say that a judge has to do that.
“I find the general findings made by Judge Helsel on the record in 1983, on April fire 22nd of 1983, are in substantial compliance with the statutory requirements and drey are sufficient.
“I’ve already made'another legal finding or ruling that I will reiterate and, that is, that it’s die defendant’s burden to show that he didn’t have counsel at some prior — in some prior case if he’s going to raise that as a basis for setting aside his plea.
“I’ll find as a matter of mixed fact and law that the proceedings in this case imposing die Habitual Criminal Act were sufficient, and I’ll deny the defendant’s motion . . . . to set aside the sentencing and have a new sentencing.”
On appeal, Jones contends that the district court erred in denying his motion to correct an illegal sentence because (1) the journal entry of sentencing did not comply with K.S.A. 22-3426 (Ensley 1981) and (2) the record of sentencing is silent as to whether he was represented by counsel in the prior convictions used to invoke the Habitual Criminal Act.
Motions to correct an illegal sentence are governed by K.S.A. 22-3504. A motion under K.S.A. 22-3504 is a part of the underlying criminal proceeding. State v. Thomas, 239 Kan. 457, 459, 720 P.2d 1059 (1986). The court may correct an illegal sentence at any time. K.S.A. 22-3504(1); State v. Perez, 267 Kan. 543, 549, 987 P.2d 1055 (1999). The issue of whether a criminal sentence is illegal is a question of law. State v. Sisk, 266 Kan. 41, 43, 966 P.2d 671 (1998). On questions of law, this court’s review is unlimited and the court is not bound by the decision of the district court. Memorial Hospital Ass'n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
It is a fundamental rule that a person convicted of a crime is given the sentence in effect when the crime was committed. State v. Tiffany, 267 Kan. 495, 503, 986 P.2d 1064 (1999). The controlling Habitual Criminal Act penalties are those which were in effect at the time the offense was committed. State v. Patterson, 257 Kan. 824, 825, 896 P.2d 1056 (1995).
Under the Habitual Criminal Act, former convictions may be applied to enhance the sentence once the trial court finds from competent evidence the fact of former convictions for felonies committed in or out of the state. State v. Crispin, 234 Kan. 104, 111, 671 P.2d 502 (1983). Due process requires that the State prove the existence of prior convictions in every essential particular, unless admitted by the defendant, before the prior convictions can be used to enhance the sentence. State v. Perez, 21 Kan. App. 2d 217, 222, 897 P.2d 1048 (1995).
The complaint is a written statement under oath of the essential facts constituting a crime. K.S.A. 22-2202(6). The complaint charging Jones indicates that the crimes were committed on or about November 29, 1982. K.S.A. 1982 Supp. 21-4504, which was the effective sentencing statute to impose the Habitual Criminal Act, provided, in part:
“(b) If a defendant is convicted of a felony a third or subsequent time, the trial judge shall sentence the defendant as follows, upon motion of the prosecuting attorney:
(1) The court shall fix a minimum sentence of not less than the greatest nor more than three times the greatest minimum sentence authorized by K.S.A. 21- 4501 and amendments thereto, for the crime for which the defendant is convicted; and
(2) the court may fix a maximum sentence of not less than the least nor more than three times the greatest maximum sentence provided by K.S.A. 21-4501 and amendments thereto, for the crime.”
When Jones’ sentence was enhanced and imposed, K.S.A. 22-3426 (Ensley 1981) provided:
“(a) When judgment is rendered or sentence of imprisonment is imposed, upon a plea or verdict of guilty, a record thereof shall be made upon the journal of the court, reflecting, if applicable, conviction or other judgment, the sentence if imposed, and the commitment, which record among other things shall contain a statement of the crime charged, and under what statute; the plea or verdict and die judgment rendered or sentence imposed, and under what statute, and a statement that the defendant was duly represented by counsel naming such counsel, or a statement that the defendant has stated in writing that he or she did not want counsel to represent him or her.
“(b) If defendant is sentenced to the custody of the secretaiy of corrections the journal entry shall record all the information required under K.S.A. 21-4620 to be included in a judgment form, if it were used.
“(c) The journal entry shall also include name and residence of the officer before whom the preliminary trial was held, the judge presiding at the trial, and of the witnesses sworn on such trial.
“(d) If the sentence is increased because defendant previously has been convicted of one or more felonies the record shall contain a statement of each of such previous convictions, showing the date, in what court, of what crime and a brief statement of the evidence relied upon by the court in finding such previous convictions. Defendant shall not be required to furnish such evidence.
“(e) It shall be the duty of the court personally to examine the journal entry and to sign the same.”
Regarding the prior convictions the sentencing judge relied on in imposing the Habitual Criminal Act in this case, the journal entry states:
“The State then presents evidence in support of its notice of intent to impose the provisions of the Habitual Criminal Act, and the Court, after reviewing the file, hearing the statements of counsel and being fully advised in the premises, sustains said motion.”
Also included in the record is the court reporter’s transcript of sentencing. The transcript establishes that the sentencing court was satisfied that the State had presented fingerprint and documentary evidence to prove that Jones had previously been convicted of two felonies.
K.S.A. 22-3426 (Ensley 1981) designates the district court’s records necessary when Jones was sentenced in 1983. Subsection (a) of K.S.A. 22-3426 (Ensley 1981) stated that when judgment is rendered in a criminal case, “a record thereof shall be made upon the journal of the court.” (Emphasis added.) It is important to note that the journal of the court and the journal entry of conviction referred to in K.S.A. 22-3426 (Ensley 1981) do not refer to the same document. Subsection (b) stated that “thejournal entry shall record all the information required under K.S.A. 21-4620 to be included in a judgment form, if it were used.” (Emphasis added.) .
Subsection (c) of22-3426 (Ensley 1981) provided that the “journal entry” shall include certain information. (Emphasis added.) Subsection (d) stated that where the sentence is enhanced because of previous crimes, the “record shall contain a statement of each of such previous convictions, showing the date, in what court, of what crime and a brief statement of the evidence relied upon by the court in finding such previous convictions.” (Emphasis added.) K.S.A. 22-3426 (Ensley 1981) concludes with subsection (e) providing that it is the duty of the court to personally examine the “journal entry.”
The journal entry does not contain a statement of Jones’ previous convictions, showing the date, court, or the evidence. The State argues that K.S.A. 22-3426 (Ensley 1981) does not require that the journal entry provide such a statement — the statute requires that the record contain the statement of the previous crimes. We agree that the statute clearly sets out the requirements of the record that shall be made upon thejournal of the court. See K.S.A. 22-3426(a) (Ensley 1981).
Neither party cites or refers to K.S.A. 21-4620, which states the requirements of the judgment form in sentencing a defendant to the custody of the Secretary of Corrections. That statute states that if
“the defendant is to be sentenced to the custody of the secretary of corrections, the court may prepare a judgment form which shall be signed by the court and filed with the clerk. If prepared, the judgment form shall reflect the conviction, the sentence and die commitment, and shall contain the following:
(1) The pronouncement of guilt including:
(A) The title of the crime;
(B) the statute violated; and
(C) die date the offense occurred.
(2) The sentence imposed including:
(A) The terms as required by subsection (2) of K.S.A. 21-4603 and amendments diereto; (B) if applicable, a description of any increase in sentence because of previous felony conviction pursuant to K.S.A. 21-4504 and amendments diereto; ... (3) The order of commitment to the custody of the secretary, if not issued as a separate order, (b) The court may attach to or include in the judgment form any of the following- (1) A statement of reasons for imposing the sentence as ordered odier than diose reasons required above to be stated; (2) a description of aggravating or mitigating circumstances the court took into consideration when ordering die commitment.” (Emphasis added.)
The statutes in effect at the time defendant was sentenced did not require the journal entry to contain a statement of defendant’s previous convictions. Appellant’s contention that the journal entry in his case did not comply with K.S.A. 22-3426 (Ensley 1981) is without merit.
Jones next challenges the imposition of the Habitual Criminal Act by asserting that the journal entry imposing his sentence in this case is insufficient to establish he was represented by counsel during the previous convictions used to enhance his sentence. For authority, Jones relies on K.S.A. 22-3426 (Ensley 1981), and State v. Maggard, 16 Kan. App. 2d 743, 829 P.2d 591, rev. denied 251 Kan. 941 (1992).
In Maggard, the Court of Appeals reversed the defendant’s enhanced sentence, holding that the sentencing court had relied on incompetent evidence (a Missouri rap sheet) to impose the Habitual Criminal Act. The Maggard court referred to subsection (d) of 22-3426 and noted that the journal entry reflecting the sentencing of the defendant under the Habitual Criminal Act did not contain the information required by the statute. 16 Kan. App. 2d at 755-56. The Maggard court ordered that on remand, if the defendant is resentenced under the Habitual Criminal Act, the journal entry of resentencing must set forth the information required by the statute. 16 Kan. App. 2d at 755-56.
Jones fails to recognize the distinction between a direct challenge and a collateral challenge to the prior convictions used to enhance a sentence. At the sentencing hearing, the State bears the burden of proving the constitutional validity of prior convictions used to enhance a sentence. See K.S.A. 22-3426 (Ensley 1981); State v. Duke, 205 Kan. 37, Syl. ¶ 3, 468 P.2d 132 (1970). However, a defendant who collaterally challenges the constitutional validity of prior convictions used to enhance his or her sentence, based on a claim of the absence of counsel, has the burden to show he or she did not have the benefit of counsel at the prior convictions and, absent such a showing, the enhanced sentence is presumed to be regular and valid. State v. Patterson, 262 Kan. 481, 490, 939 P.2d 909 (1997).
Patterson is controlling. Jones offered no evidence to support his contention that he was not represented by counsel in his previous convictions; therefore, he failed to meet his burden of proof.
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The opinion of the court was delivered by
Larson, J.:
We begin our opinion, in this complex and troubling appeal involving the guardianship and custody of a now 7-year-old little girl, cognizant of the admonition of Chief Justice Frank D. Celebrezze of the Ohio Supreme Court in In re Wonderly, 67 Ohio St. 2d 178, 188, 423 N.E.2d 420 (1981), where in a contest over a guardianship, he said:
‘While statutes can be amended and case law can be distinguished or overruled, we take judicial notice of the fact that children grow up only once. When a mistake is made in a custody dispute, the harmful effects are irrevocable.”
The appeal presented to us is by the minor child’s maternal uncle and aunt, Stanley R. Gateley and Tina Gateley, of Gilmore, Texas, who contend that the Kansas guardianship proceedings involving Jaclynn Paige Ward are jurisdictionally defective and a custody decree of an Oklahoma court must be recognized and enforced in Kansas against Dave Ward and Donna Ward who were designated guardians and conservators of Jaclynn Paige Ward by her father, Stanley T. Ward, when he moved her from Oklahoma to Kansas following the death of her mother, Vanita Ruth Ward, in an accident.
Statement of facts
The following facts were stipulated by the parties in the trial court:
"1. Jaclynn Ward was bom February 28, 1994, in Clinton, Custer County, Oklahoma, to Vanita Ruth Ward and Stanley T. Ward, and she resided in Weatherford, Custer County, Oklahoma, from the time of her birth until January 23, 2000.
“2. Vanita Ruth Ward and Stanley T. Ward were divorced in the District Court, 2nd Judicial District, Custer County, Oklahoma, Case No. FD-98-150 captioned, Vanita Ruth Ward vs. Stanley T. Ward.
“3. A Journal Entry of Judgment and Decree of Divorce was filed on October 21, 1999, in the Custer County, Oklahoma District Court Case No. FD-98-150, wherein the Court determined that Vanita Ruth Ward was a ‘fit and proper person to be awarded exclusive care and custody of the minor child, [Jaclynn Paige Ward, bom February 28,1994] subject to [Stanley T. Ward’s] restricted visitation rights. Said visitation was to be for a maximum of three afternoon visitations per week, each being a maximum of three (3) hours in length.’
“4. On January 11, 2000, Vanita Ruth Ward was killed in an accident.
“5. Thereafter, Jaclynn Ward remained in the physical custody of her grandmother, Georgia Gateley, and her maternal aunt and uncle, Tina Gateley and Stanley R. Gateley, in Weatherford, Oklahoma except for those periods of time when Stanley T. Ward had physical custody of her.
“6. After Vanita Ward’s death on January 11,2000, Stanley T. Ward had physical custody of Jaclynn Ward for 2 hours on January 13, 2000; for 2 hours on January 14, 2000; for 2 hours on January 16, 2000; and for 2 hours on January 19; 2000. On January 23, 2000 Stanley T. Ward stated that he wished to have physical custody of Jaclynn for 3 hours and the Gateleys agreed. Stanley T. Ward did not return Jaclynn Ward to the Gateleys at the end of 3 hours.
“7. On January 23, 2000, David and Donna Ward flew from Norton, Kansas, to Weatherford, Oklahoma, and returned to Norton, Kansas, with Stanley T. Ward and Jaclynn Ward.
“8. Stanley Ward resided in Weatherford, Oklahoma, as of January 24, 2000.
“9. On January 24, 2000, Stanley T. Ward as surviving natural guardian of Jaclynn Ward, filed a Petition in the District Court of Norton County, Kansas, Case No. 00-P-02, seeking to have David Ward and Donna Ward, his brother and sister-in-law, appointed as co-guardians and co-conservators of Jaclynn Ward. At die time, Jaclynn Ward was physically present in Norton County, Kansas and was in die physical custody of Stanley T. Ward. At this point, the Gateleys had filed nothing in Oklahoma.
“10. Notice of the hearing on the petition was never provided to Georgia Gateley, Tina Gateley or Stanley Gateley, after the Norton County District Court found no notice was necessary.
“11. The District Court of Norton County, Kansas, issued an Order Appointing David Ward and Donna Ward as Co-Guardians on January 24, 2000, in Norton County District Court Case No. 00-P-02. At the time, Jaclynn Ward was physically present in Norton County, Kansas and was in the physical custody of Stanley T. Ward.
“12. Letters of Guardianship were issued to David Ward and Donna Ward by the District Court of Norton County, Kansas, on January 24, 2000, in Norton County District Court Case No. 00-P-02. At the time, Jaclynn Ward was physically present in Norton County, Kansas and was in the physical custody of Stanley T. Ward.
“13. On January 25, 2000, the Norton County District Court issued an Order Nunc Pro Tunc in Case No. 00-P-02 correcting the spelling of the Ward s first name from ‘Jacqueline’ to ‘Jaclynn.’
“14. On January 31, 2000, the Honorable Jacqueline P. Duncan, Judge of the District Court of Custer County, Oklahoma, conferred with the Honorable Wilda Brown, District Magistrate Judge of the Norton County, Kansas, District Court, and Judge Duncan advised Judge Brown that Oklahoma intended to retain its jurisdiction over Jaclynn Ward. Judge Brown refused to dismiss the Kansas guardianship proceeding.
“15. On February 29, 2000, Stanley R. Gateley, Tina Gateley and Georgia Gateley filed a ‘Special Appearance and Petition to Dismiss for Lack of Jurisdiction and to Enforce Oklahoma Court Orders,’ in Norton County District Court Case No. 00-P-02.
“16. On January 26, 2000, Stanley R. Gateley and Tina Gateley filed a Petition in the Custer County, Oklahoma District Court, Case No. PG-2000-3, seeking guardianship of Jaclynn Ward.
“17. On February 3, 2000, after giving notice to David Ward and Donna Ward, and after attempting unsuccessfully to give notice to Stanley T. Ward, the District Court of Custer County, Oklahoma, held a hearing in Case No. PG-2000-3 entitled, In the Matter of the Guardianship/Custody of Jaclynn Paige Ward, aminor, by and through her maternal aunt and uncle as next friend, Stanley R. Gateley and Tina Gateley, Plaintiff, vs. Stanley T. Ward, Dave Ward and Donna Ward, Defendants (‘the Oklahoma guardianship proceedings’) and granted co-guardianship of Jaclynn Ward to Stanley R. Gateley, Tina Gateley and Georgia Gateley. Stanley T. Ward, Dave Ward and Donna Ward appeared at the hearing specially for purposes of objecting to Oklahoma’s jurisdiction and arguing a motion to dismiss filed with the Custer County, Oklahoma District Court on February 3, 2000, which motion was denied.
“18. In February 29, 2000, Stanley R. Gateley caused a certified copy of the Order issued in the Oklahoma guardianship proceedings, Custer County Oklahoma, Case No. PG-2000-3, to be filed in die District Court of Norton County, Kansas, as Case No. 00-D-20.
“19. On March 3, 2000, Stanley T. Ward, Dave Ward and Donna Ward filed an appeal to the Oklahoma Supreme Court appealing die court’s ruling in Custer County, Oklahoma, Case No. PG-2000-3.
“20. On March 7, 2000, Stanley T. Ward, Dave Ward and Donna Ward filed a Motion to Cancel Registration of Out of State Custody Decree and/or to Stay Enforcement thereof in Norton County District Court Case No. 00-D-20.
“21. On February 29, 2000, Stanley R. Gateley caused a certified copy of the Journal Entry of Judgment and Decree of Divorce issued by the Custer County, Oklahoma District Court, Case No. FD-98-150, to be filed in the District Court of Norton County, Kansas, as Case No. 00-D-19.
“22. On March 7, 2000, Stanley Thomas Ward, David Stephen Ward and Donna Marie Ward filed a Motion to Cancel Registration of Out of State Custody Decree and for Stay of Enforcement in Norton County, Kansas, District Court Case No. 00-D-19.”
The trial court in an additional finding added:
“24. Although not a stipulated fact, the Court notes from the Order issued by die District Court of Custer County, Oklahoma, in Case No. PG-2000-3 that the Petitioners, Stanley R. Gateley and Tina Gateley are residents of Gilmore, Texas, who in said case prayed for an order for the immediate custody of Jaclynn Paige Ward.”
It is not a part of the record below and was objected to by the Gateleys, but it was stated at oral argument that Stanley T. Ward was at that time a resident of Norton County, Kansas. This is not considered in our decision.
The Gateleys filed a supplement to their brief pursuant to Kansas Supreme Court Rule 6.09 (2000 Kan. Ct. R. Annot. 41), objected to by the Wards, setting forth the opinion of the Oklahoma Supreme Court dated May 8, 2001, in the case captioned S.W. v. Duncan, 24 P.3d 846 (Okla. 2001).
Trial court’s conclusions of law and findings
After receiving briefs and replies, and hearing arguments from the parties, the trial court rendered a written opinion which concluded that, as stated in In re Marriage of Osborn, 21 Kan. App. 2d 374, 379, 901 P.2d 12 (1995), Kansas recognizes the parental preference doctrine and holds that “when a divorce decree gives custody to a parent who dies, the right of custody automatically reverts to the surviving parent subject to the condition that he or she is a fit and suitable person to have custody.” Further, Turley v. Turley, 638 P.2d 469, 470 (Okla. 1981), was relied on for the Oklahoma rule that “[ujpon the death of the parent into whose custody children are placed by a decree of divorce, the children stand, with relation to the surviving parent and all the world, as if no decree of divorce had been entered.”
Although the Wards argued, as they do on appeal, that the Uniform Child Custody Jurisdiction Act (Furse 1993) (UCCJA), K.S.A. 38-1301 et seq., did not apply to these proceedings, the trial court found that it did apply to the Kansas guardianship proceedings.
The trial court then quoted the provisions of K.S.A. 38-1303 (Furse 1993) and stated a conflict between two opposing custody decrees is averted by the priority-of-filing rule of the UCCJA and the second court must yield jurisdiction to the court in which a custody action was pending first (citing Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction Under the UCCJA, 14 Fam. L. Q. 203 [1981]).
The court then concluded that upon the death of Vanita Ruth Ward, the sole legal custody of Jaclynn Ward immediately and automatically vested in Stanley T. Ward, her surviving father, without any requirement of legal action and that he had the legal right to take his daughter anywhere he chose without legal notice to or the legal consent of anyone.
The trial court found that while Oklahoma had jurisdiction under the UCCJA as the child’s “home state,” Kansas also had jurisdiction under the “more appropriate forum” and “significant connection” provisions of the UCCJA. When the petition was filed in the District Court of Norton County, Kansas, on January 24, 2000, by Stanley T. Ward, seeking the appointment of his brother and sister-in-law, David Ward and Donna Ward as co-guardians and co-conservators of Jaclynn Ward, there were no proceedings pending in Oklahoma; the court found this resulted in Kansas issuing the initial decree, and under the holding of In re Marriage of Moser, 251 Kan. 490, 836 P.2d 1158 (1992), and because of its initial custody decree, Kansas would have continuing exclusive jurisdiction.
The court also found that the Oklahoma judge who presided over the guardianship proceedings filed in the District Court of Custer County, Oklahoma, on January 26, 2000, failed to have an appropriate conference as required by the UCCJA. Specifically, the court held that while the Oklahoma judge advised that Oklahoma intended to retain jurisdiction, there was no stipulation in the record that the Oklahoma judge made an effort to determine if Kansas had assumed jurisdiction in substantial conformance with the UCCJA or considered the issue of which state was “the more appropriate forum”; thus, that issue was never determined.
Focusing on the more appropriate forum issue, the trial court noted that the residence of the paternal aunt and uncle was in Kansas, the residence of the maternal aunt and uncle was in Texas, and the lawful wishes of the minor’s father who had sole legal custody of her should be followed. The court expressed that Kansas had “available substantial evidence concerning her future care, protection, training and personal relationships.” The court further stated: “There [were], therefore, maximum, as opposed to minimum, contacts with the State of Kansas.” The court noted this case was dissimilar to proceedings between competing parents where current information from Oklahoma would be important.
The trial court held that the District Court of Norton County properly exercised subject matter jurisdiction and appointed the Wards as co-guardians and co-conservators, denied the Gateleys’ motion to dismiss for lack of jurisdiction and to enforce the Oklahoma court orders, and granted the Wards’ motion to cancel the registration of the Oklahoma custody decree.
Following this order, the Gateleys moved for reconsideration, pointing out that the Oklahoma custody order awarded physical custody to the grandmother, Georgia Gateley, not the maternal uncle and aunt; the court failed to consider the Parental Kidnapping Prevention Act of 1980 (PKPA), 28 U.S.C. § 1738A (1994); and the Oklahoma proceedings were on appeal regarding the application of the Oklahoma Uniform Child-Custody Jurisdiction and Enforcement Act, Okla. Stat. Marriage and Family 43, § 551-101 et seq. (1988) and the Turley case. This motion was denied by the court in an order dated May 15,2000, stating that it had considered the PKPA.
The notice of appeal filed herein is by Stanley R. Gateley and Tina Gateley, who state they appeal only the memorandum decision of the trial court entered and filed April 18, 2000.
Our jurisdiction is pursuant to K.S.A. 20-3018(c) (transfer from Court of Appeals on our own motion).
Issues raised by the parties on appeal
The Gateleys outline their arguments by providing an overview of child custody law and then contend (1) guardianship proceedings are subject to the UCCJA, (2) Kansas cannot acquire home state jurisdiction by significant connections or abandonment, (3) Kansas lacks subject matter jurisdiction which cannot be waived, (4) the Kansas court erred by not requiring the disclosure and notice requirements of the UCCJA in the guardianship proceedings below, (5) Oklahoma has exercised jurisdiction in compliance with the UCCJA, and (6) the Kansas court erred by failing to consider the PKPA when interpreting the UCCJA.
The Wards respond by phrasing the issues as (1) Did the trial court err in its application of the Kansas UCCJA? and (2) Did the trial court err in its application of the PKPA?
Standard of review
Appellate courts have de novo review of cases decided on the basis of documents and stipulated facts. Lightner v. Centennial Life Ins. Co., 242 Kan. 29, Syl. ¶ 1, 744 P.2d 840 (1987).
We have likewise stated that when issues of statutory construction are involved, these are questions of law over which we have unlimited review. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
In construing the statutes in issue, we refer to certain basic rules of statutory construction by which we are bound:
“It is a fundamental rule of statutory construction, to which all other rules are subordinate that the intent of the legislature governs if that intent can be ascertained. [Citation omitted.] The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted.” In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
“In order to ascertain the legislative intent, courts are not permitted to consider only certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia.” Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 (1975).
“When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment. [Citations omitted.]” Hughes v. Inland Container Corp., 247 Kan. 407, 414, 799 P.2d 1011 (1990).
Do the provisions of the UCCJA apply to this Kansas guardianship proceedingP
The Gateleys argue that by failing to cross-appeal the trial court’s application of the UCCJA, the Wards have abandoned their contention at the trial court that it does not apply to the facts of this case. Examination of the Wards’ arguments in the trial court and in their brief on appeal show they have not abandoned this contention at any time during these proceedings. We must first determine if the UCCJA applies to the Kansas guardianship proceedings under the facts of this case, and only if it does, are we then required to determine if it has been properly applied by the trial court.
The statutory provisions by which guardians and conservators are appointed in Kansas are set forth in K.S.A. 59-3001 et seq., and the following specific provisions apply:
A “natural guardian” of a minor may be either the father or the mother but “[i]f either parent of a minor dies, has been found to be a disabled person or has had parental rights terminated by a court of competent jurisdiction, the other shall be the natural guardian.” K.S.A. 2000 Supp. 59-3002(e). Stanley T. Ward was clearly the natural guardian of Jaclynn Ward at the time the guardianship and conservatorship proceedings were instituted in Norton County, Kansas, on January 24, 2000.
K.S.A. 59-3003 states: “A natural guardian shall have the right to the custody of the natural guardian’s minor child and the right to exercise control over the person of the natural guardian’s minor child as provided by law, unless a guardian has been appointed for the minor.” Stanley T. Ward was exercising these rights.
The provision of greatest interest is K.S.A. 1999 Supp. 59-3009, which relates to the contents of the application for the appointment of a guardian or conservator. At the time of the Kansas appointment, it stated: “(a) Any person may file in the district court of the county of the residence or presence of the proposed ward a verified petition for the appointment of a guardian.” The requirements for the petition were contained in subsection (b):
“(b) If the proposed ward or proposed conservatee is alleged to be a minor the petition shall state:
(1) The proposed ward or proposed conservatee is a minor;
(2) the name, age, residence and present address of the proposed ward or proposed conservatee, if known to the petitioner;
(3) the name and address of the natural guardian, guardian, conservator and custodian, if any, of the proposed ward or proposed conservatee, if known to the petitioner, and if not known that the petitioner has made diligent inquiry to learn their names;
(4) the general character and probable value of the real and personal property, including the amount and sources of income, of the proposed ward or proposed conservatee, if known to the petitioner;
(5) die names and addresses of witnesses by whom the trudi of the petition may be provided;
(6) the reasons for the need for the appointment of a guardian or conservator, or both;
(7) a request that the court make a determination that the proposed ward or proposed conservatee is a minor, make one or more of the orders provided for by K.S.A. 59-3010 and 59-3011 and amendments thereto, and appoint a guardian or a conservator, or bodi; and
(8) the name, address, and relationship to die proposed ward or proposed conservatee, if any, of the person whom the court is requested to appoint as a guardian or as a conservator.”
It is significant that when the Kansas guardianship proceedings were initiated, there was not an express statutory reference by the UCCJA to the guardianship provisions, nor did the guardianship provisions make the UCCJA a part of, involved in, or related to the contents of the application for appointment of a guardian or a conservator.
This is of upmost importance as we consider whether the UCCJA applied to the guardianship proceedings in the present case because the 2000 Kansas Legislature enacted the Kansas Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) as sections 31 through 72 of House Substitute for Senate Bill No. 150. See L. 2000, ch. 171, § § 31-72; K.S.A. 38-1336 et seq. Part of this enactment amended K.S.A. 1999 Supp. 59-3009(b) as it relates to the contents of a petition for appointment of a proposed ward or conservatee:
“(b) If the proposed ward or proposed conservatee is alleged to be a minor the petition shall state:
(1) The proposed ward or proposed conservatee is a minor;
(2) the name, age, residence and present address of the proposed ward or proposed conservatee, if known to the petitioner;
(3) the information required including that information required by section 51, and amendments thereto, if the petition seeks appointment of a guardian for the minor;
{3} (4) the name and address of the natural guardian, guardian, conservator and custodian, if any, of the proposed ward or proposed conservatee, if known to the petitioner, and if not known that the petitioner has made diligent inquiry to learn their names;
(4) (5) the general character and probable value of the real and personal property, including the amount and sources of income, of the proposed ward or proposed conservatee, if known to the petitioner;
{5) (6) the names and addresses of witnesses by whom the truth of the petition may be provided;
f6) (7) the reasons for the need for the appointment of a guardian or conservator, or both;
if) (8) a request that the court make a determination that the proposed ward or proposed conservatee is a minor, make one or more of the orders provided for by K.S.A. 59-3010 and 59-3011 and amendments thereto, and appoint a guardian or a conservator, or both; and
(8) (9) the name, address, and relationship to the proposed ward or proposed conservatee, if any, of the person whom the court is requested to appoint as a guardian or as a conservator.” L. 2000, ch. 171, § 77; K.S.A. 2000 Supp. 59-3009.
This provision became effective July 1, 2000, but did not apply as of the date of the petition in issue in the instant appeal.
The provisions of K.S.A. 38-1356 which replaced the UCCJA and are now part of the UCCJEA read as follows:
“(a). Subject to subsection (e), in a child-custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child’s present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party:
(1) Has participated, as a party or witness or in any odier capacity, in any odier proceeding concerning the custody of or visitation with the child and, if so, identify die court, the case number, and the date of the child-custody determination, if any;
(2) knows of any proceeding diat could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so identify the court, die case number, and the nature of the proceeding; and
(3) knows the names and addresses of any person not a party to die proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, die names and addresses of tiiose persons.
“(b) If die information required by subsection (a) is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until die information is furnished.
“(c) If die declaration as to any of the items described in subsection (a)(1) through (3) is in die affirmative, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of tile informant furnished and other matters pertinent to the court’s jurisdiction and die disposition of the case.
“(d) Each party has a continuing duty to inform the court of any proceeding in diis or any odier state that could affect the current proceeding.
“(e) If a party alleges in an affidavit or a pleading under oadi diat the health, safety, or liberty of a party or child would be jeopardized by disclosure of identifying information, the information must be sealed and may not be disclosed to die odier party or die public unless the court orders die disclosure to be made after a hearing in which the court takes into consideration the health, safety, or liberty of the party or child and determines diat the disclosure is in die interest of justice.”
It is now clear that from and after July 1, 2000, the above provision of the UCCJEA statutorily applies to and must be a part of the contents of a Kansas guardianship petition and proceeding. No such reference previously existed as to the UCCJA, and, based on the statutory construction rules that we have previously set forth, “[w]hen the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment.” Hughes, 247 Kan. at 414. The UCCJA was not part of or applied to Kansas guardianship provisions prior to July 1, 2000. At the time the UCCJA was enacted in Kansas, the guardianship provisions were already in existence. Had the legislature intended the UCCJA to apply to guardianships, it could have done so. This legislative failure to do so is strong evidence that the UCCJA did not apply to Kansas guardianship proceedings prior to July 1, 2000.
While the presumption regarding legislative change is a strong indication as to what the previous law was in Kansas, it can be argued that the enactment of the UCCJEA and the amendments now contained in K.S.A. 2000 Supp. 59-3009 did nothing more than recognize statutorily our existing law that the UCCJA applied to Kansas guardianship proceedings. Before resolving this question, we return to the Kansas guardianship provisions to determine whether they were properly applied in this case.
If the UCCJA does apply to our facts, then a different notice requirement might exist; however, if it does not apply, K.S.A. 2000 Supp. 59-3010(b) states: “If the petition is filed on behalf of the minor by . . . the natural guardian of the minor [which it was in this case], the time of the hearing designated in the order may be forthwith and without notice.” It is then apparent that the immediate hearing on the application of Stanley T. Ward was statutorily authorized and the immediate appointment was proper.
Finally, it was also proper for the appointees to be parties designated by the minor’s natural guardian, as K.S.A. 2000 Supp. 59-3014(a) states:
“[T]he court in appointing a suitable guardian or conservator shall give priority in the following order:
(1) To die nominee of a minor over die age of 14 years who is not a disabled person.
(2) to die nominee of a natural guardian [applicable to our facts and justifying die Donna and Dave Ward appointment as designated by die natural guardian, Stanley T. Ward].”
From our foregoing discussion, it is apparent that the Kansas guardianship provisions were properly followed and the appointment of the Wards was proper unless the intervention of the UCCJA makes those proceedings subject to all of its provisions.
The most important part of the factual scenario in this case is that this is not a contest involving two living parents, and all of the cases and statutory provisions which have involved or construed such situations are simply not applicable to our set of facts.
While the Gateleys argue that in every decided case the UCCJA has been applied to guardianship situations, an examination of cases from other states show that factual, statutory, and rule differences exist where such holdings have been made. For example, see Ray v. Ray, 494 So. 2d 634, 637 (Ala. Civ. App. 1986) (UCCJA held applicable to guardianship proceeding in Georgia where living mother and father were involved in a custody determination); In re Wonderly, 67 Ohio St. 2d 178, 423 N.E.2d 420 (1981) (UCCJA applicable to guardianship proceeding, where grandparents attempted custody change 9 years after surviving parent’s testamentary designation of children’s custody); Matter of Guardianship of Walling, 727 P.2d 586, 590 (Okla. 1986) (UCCJA applicable to guardianship proceedings because Oklahoma District Court Rule 8.2 so states); Gribkoff v. Bedford, 76 Or. App. 695, 711 P.2d 176 (1985) (UCCJA applied to guardianship proceedings where neither mother or father were caring for child who was being raised by maternal and paternal grandparents who resided in separate states); In Interest of A.E.H., 161 Wis. 2d 277, 468 N.W.2d 190 (1991) (Wisconsin guardianship was a custody proceeding under UCCJA but California had relinquished jurisdiction and Wisconsin assumed jurisdiction). In addition, the Missouri Court of Appeals in In re Estate of Patterson, 652 S.W.2d 252 (Mo. App. 1983), held that under specific state statutes the UCCJA was deemed to apply to appointments of a guardian of the persons but not to a guardian of the estate of two minor children. Also see Annot., Applicability of UCCJA or PKPA, 78 A.L.R.4th 1028.
In light of the specific changes in the laws of Kansas to make guardianship proceedings subject to the UCCJEA subsequent to July 1, 2000, and the clearly different reasons which appear to be the basis for the decisions in other states, we hold the UCCJA was not applicable to Kansas guardianship proceedings at the time the proceedings in this case were instituted.
Furthermore, the Kansas cases relied on by both sides to this appeal are not definitive of the question of whether the UCCJA must be applied to Kansas guardianship proceedings in this case.
The Gateleys’ reliance on In re Marriage of Mosier, 251 Kan. 490, 836 P.2d 1158 (1992), and In re Marriage of Harris, 20 Kan. App. 2d 50, 883 P.2d 785, rev. denied 256 Kan. 995 (1994), is misplaced. In both cases both parents were still living and the analysis therein is simply not applicable to our factual situation.
Likewise, the Wards’ contention that In re Stremel, 233 Kan 136, 660 P.2d 952 (1983), and In re Miller, 228 Kan. 606, 620 P.2d 800 (1980), support their argument that the UCCJA does not apply to the guardianship proceedings under the facts of this case is not persuasive. Neither case related to the applicability of the UCCJA. Stremel involved issues of venue between two Kansas district courts and Miller involved an adult ward.
The precise questions which faced the Court of Appeals in In re Marriage of Osborne, 21 Kan. App. 2d 374, 901 P.2d 12 (1995), are not before us, and we decline to comment on the holding therein which involved a conflict between a surviving mother and a stepmother. The case is not dispositive on the question of applying the UCCJA to guardianship proceedings, and we reject the Wards’ suggestion that the time Jaclynn Ward has been in Kansas should be considered in rendering our decision.
None of the Kansas cases have sufficient applicability to change or alter our conclusion that the legislative change making the UCCJEA applicable to guardianship provisions made by the 2000 Kansas Legislature recognized and confirmed that the UCCJA did not apply to Kansas guardianship proceedings prior to July 1,2000.
Our decision that the UCCJA did not apply to the guardianship and conservatorship proceedings in this case requires that the trial court be affirmed if its ruling is correct for any reason even though it relied upon the wrong ground'or assigned erroneous reasons for its decision. KPERS v. Reimer & Roger Assocs., Inc., 262 Kan. 110, 118, 936 P.2d 714 (1997).
The result we reach is not altered or changed by the decision of the Oklahoma Supreme Court in S.W. v. Duncan, 24 P.3d 846 (Okla. 2001), involving the parties to our appeal. That opinion appears to have recast its previous ruling in Turley v. Turley, which, at the time Stanley T. Ward removed his daughter from the State of Oklahoma, relied on Ingles v. Hodges, 562 P.2d 845 (Okla. 1977) to hold:
“Upon the death of the parent into whose custody children are placed by a decree of divorce, the children stand, with relation to the surviving parent and all the world as if no divorce had been entered.” Turley, 638 P.2d at 470.
The S. W. v. Duncan opinion further stated: “We thus agree that father obtained custody rights of his child upon the death of the custodial parent.” 24 P.3d at 851-52. We therefore hold that the natural guardian of the minor had lawful custody of the minor when she was moved to Kansas and when the guardianship and conservatorship proceedings were commenced. The district court of Norton County, Kansas, properly exercised jurisdiction in this case and in appointing the designees of the natural father (the Wards) as guardians and conservators; it properly denied the maternal uncle and aunt’s motion to dismiss for lack of jurisdiction and to enforce Oklahoma court orders; and it properly granted the paternal uncle and aunt and natural father’s motion to cancel the registration of the Oklahoma custody decree.
The issues were different, but we have said in other cases that “child custody is a fundamental right of a parent, protected by the due process clause of the Fourteenth Amendment.” In re Guardianship of Williams, 254 Kan. 814, 819-20, 869 P.2d 661 (1994), citing Sheppard v. Sheppard, 230 Kan. 146, 630 P.2d 1121 (1981), cert. denied 455 U.S. 919 (1982). While we cannot undo the bitterness of a divorce or the tragic accidental death of a mother, the result we reach allows the surviving parent and natural guardian to control the future care, protection, training, education, and nurturing of his minor child.
Based on what we have said and held, it is clear the PKPA is not applicable in this case and the trial court properly so held. We need not reach or comment on other arguments raised by the Gateleys.
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The opinion of the court was delivered by
Larson, j.:
This is Robert Verge’s direct appeal of his convictions of capital murder, K.S.A. 21-3439(a)(6), aggravated burglary, K.S.A. 21-3716, aggravated robbery, K.S.A. 21-3427, and two counts of theft, K.S.A. 21-3701. He was sentenced to life imprisonment with the possibility of parole after 40 years on the capital murder conviction, 68 months on the aggravated burglary conviction, 138 months on the aggravated robbery conviction, 14 months on the first felony theft conviction, and 14 months on the second felony theft conviction, with each sentence to run consecutively. Verge raises nine issues on appeal relating to venue, jury selection, evidence, prosecutorial conduct, upward departure, and constitutionality of sentence. He appeals directly to our court pursuant to K.S.A. 22-3601(b)(l).
Factual and procedural background
This is a companion case to State v. Bradford, 272 Kan. 523, 34 P.3d 434 (2001).
On February 17, 1997, around 6 a.m., a schoolteacher noticed two individuals carrying a flashlight walking down Solomon Road, north of the residence of Kyle and Chrystine Moore in Dickinson County, Kansas. She stated this was unusual and when returning home from work, she noticed the window of the Moore home was broken out. This report eventually led to the discovery of the slain bodies of Kyle and Chrystine Moore.
The investigating officers found blood stains in the living room, dining room, bathroom, and bedroom. The two victims were found dead in their bedroom. The bedroom had numerous blood impact stains on the walls and ceiling.
Kyle Moore died from gunshot wounds in association with blunt and sharp force injuries, showing he was beaten, stabbed, and shot. The number of wounds on his body totaled 102, some of which appeared to be defensive in nature and the result of a substantial struggle. The pattern of shots indicated that he was not moving at the time he was shot 10 times; however, he did still have blood pressure.
Chrystine Moore died from multiple gunshot wounds in association with stab wounds. She also had defensive wounds. Although she was stabbed numerous times, the wounds appeared to be treatable. She received several gunshot wounds to the head, some of which were “contact” wounds where the barrel of the gun contacted her skin. She was alive until the time when she was shot.
A knife wrapped in tissue paper, an empty handgun box, an empty handgun case, an empty ammunition box, and several .22 caliber shell casings were found at the Moore residence. DNA tests of blood stains found on the handgun box, a towel found in the bedroom, an invoice for one of the handguns found outside the residence, a leather jacket found in the victims’ pickup truck, and the dash and vent of Kyle Moore’s State-issued vehicle showed the blood to be consistent with that of Robert Verge.
Kyle Moore’s State-issued vehicle was found in Kansas City, Missouri, parked outside of an apartment building. In the course of the investigation, the authorities became acquainted with one of the apartment residents, Charles Bostic.
Bostic testified for the State that he was a friend of Verge, and they grew up together. He stated that one morning in February 1997, Verge and Virgil Bradford came over to his apartment. The two looked like they had been up all night, and Verge had what appeared to be blood stains on his leather jacket and shoe strings. According to Bostic, Verge said they had just “killed some cops” and he motioned to Bradford to “show him.” Bradford then lifted his shirt and displayed three handguns, which Bostic claimed were Verge’s .38 caliber revolver, along with a .22 caliber and a 9 mm automatic.
In later testimony, Bostic stated Verge relayed the following sequence of events concerning the murders:
“He just said that they went up to the people’s house, Virgil was supposed to have broke the window, they were supposed to have went through a window. They went upstairs, they was asleep, Virgil was supposed to have jumped on top of the man and start hitting him with his pistol. With the .38, supposed to start beating him with that. He put it like the man had a .22 on his night stand. He said the man went for his gun. Robert said he wrestled it out of the man’s hand.
“Then he said the woman was supposed to have woken up and he was supposed to have jumped over on top of the woman and grabbed her by the throat and started stabbing her, and Virgil was supposed to have said ‘The bitch ain’t dead, shoot her,’ and he was supposed to have shot her.”
Testifying in his own defense, Verge stated that after stopping in Solomon for gas, his car got stuck on a dirt road as he was trying to get back onto 1-70. Verge stated that he and Bradford stopped at the Moore’s house to ask directions back to the gas station and that as he was leaving, Bradford broke into the house to steal keys to a car. He said that he eventually followed Bradford in and saw Bradford beating up Kyle Moore. Verge testified he stood there in shock when he saw what Bradford was doing. After Kyle fell to the floor, Verge stated Bradford proceeded to stab Chrystine Moore until she was incapacitated. Verge testified that he started looking for car keys and while he was doing that, he heard Bradford shooting the Moores. After Bradford shot them, Verge and Bradford found the keys and left in the Moores’ truck. Verge was driving the truck and again became stuck in the muddy road. The two returned to the Moores’ house and this time took the Moores’ other car and drove it to Kansas City.
Verge was convicted of one count of capital murder for the premeditated and intentional killings of Kyle and Chiystine Moore as part of the same act or transaction, or in two or more acts or transactions connected together, or constituting parts of a common scheme or course of conduct pursuant to K.S.A. 21-3439(a)(6). Verge was also convicted of aggravated burglary, aggravated robbeiy, and two counts of theft. The jury declined to assess the death penalty, and Verge was sentenced as previously stated. We next consider the issues he raises in his appeal.
Change of venue
Verge first contends the trial court abused its discretion in failing to grant his motion for change of venue, based on (1) results of the defense venue study, (2) alleged unqualified potential jurors in the venire, (3) racial prejudice in the community as reflected on the juror questionnaires, (4) potential juror knowledge of sensitive and sometimes false information concerning the case, (5) the trial court’s failure to apportion any weight to the defense venue study, and (6) the trial court’s refusal to allow a defense expert witness to give his opinion on whether a fair jury could be impaneled from die Dickinson County pool.
We stated our standard of review for motions to change venue in State v. Deiterman, 271 Kan. 975, 978, 29 P.3d 411 (2001):
“ ‘The determination of whether to change venue is entrusted to the sound discretion of die trial court; its decision will not be disturbed on appeal absent a showing of prejudice to the substantial rights of die defendant. [Citation omitted.] The burden is on the defendant to show prejudice exists in the community, not as a matter of speculation, but as a demonstrable reality. The defendant must show that such prejudice exists in die community diat it was reasonably certain he or she could not have obtained a fair trial. [Citation omitted.]’ State v. Anthony, 257 Kan. 1003, 1013, 898 P.2d 1109 (1995).”
Additionally, we held in State v. Lumbrera, 252 Kan. 54, 57-58, 845 P.2d 609 (1992), relying on State v. Sanders, 223 Kan. 273, 280, 574 P.2d 559 (1977), that the State is not required to produce evidence refuting that of the defendant.
Verge’s motion to change venue filed pursuant to K.S.A. 22-2616 was based on a study prepared by Litigation Consultants, Incorporated, which compared opinions of 300 jury eligible residents of Dickinson County with 401 jury eligible residents of Sedgwick County. The preparers of the survey admitted the areas were different because one was rural and one was urban. The questions asked suggested answers and did not allow an answer of “no opinion.” The results were testified to reveal that 96.7% of the Dickinson County residents could recall the case, 71.7% had talked about it, 64% believed Verge was either definitely or probably guilty,. 39% believed there was a lot of evidence against him, and 5.4% believed there was overwhelming evidence. 71.4% believed Verge should receive the death penalty if convicted. A parallel survey done in Sedgwick County revealed a jury pool much less knowledgeable.
The State presented a separate survey that found 58% of those surveyed had not formed an opinion about the case.
Dr. Thomas Beisecker testified as an expert and opined the methodology used by the consulting firm was sound and adequate to reflect the potential jurors in both counties.
The trial court denied Verge’s motion to change venue, holding he failed to cany the burden to show prejudice which would prevent a fair and impartial jury from being selected. The court found there was no showing of prejudice from the media coverage, that polling neither separated the issues in the mind of the people who responded nor showed that prejudice was such that a fair trial could not be obtained. The court, apparently looking at the State’s poll, stated: “Now, at least half the people in Dickinson County, according to these surveys, have not formed an opinion as to the guilt or innocence of the defendants.”
Strikingly on point is this court’s recent decision in State v. Higgenbotham, 271 Kan. 582, 23 P.3d 874 (2001). There, the defendant complained of inflammatory publicity and presented a survey similar to the one in this case. The same expert, Dr. Beisecker, testified in the Higgenbotham case. Our Higgenbotham opinion stated:
“The survey pool was made up of 302 residents in Harvey County. The survey concluded that 95.7% of the individuals surveyed recalled the case after being given a brief synopsis, 60.6% of the individuals believed the defendant was either probably or definitely guilty, and 53% of the residents with knowledge believed that there was at least some evidence that the defendant was guilty. The survey also found that Ellis County would be similar in make up to Harvey County but did not have the same problems with regard to publicity and knowledge of the case.”'271 Kan. at 593.
Our Higgenbotham opinion noted that we have not found abuse of discretion for not changing venue in other cases:
“See [State v.] Jackson, 262 Kan. [119,] 129-30[, 936 P.2d 761 (1997)] (finding no abuse of discretion even though 82% of the respondents recalled at least some specifics about the incident and 60% thought the defendant was probably or definitely guilty); State v. Swafford, 257 Kan. 1023, 1035-36, 897 P.2d 1027 (1995) (using same survey, 57.1% of those surveyed felt the evidence was strong against the defendant); State v. Anthony, 257 Kan. 1003, 1013-15, 898 P.2d 1109 (1995) (finding no abuse of discretion even though 97.5% of those surveyed had heard of the case and 63.8% of those surveyed felt the evidence was strong against the defendant).” 271 Kan. at 593.
Verge had compiled a study based upon statistics on 110 of the more suspect prospective jurors, showing their familiarity with the crime and their potential inability to properly decide a death pen alty case, as well as some who showed signs of racial prejudice. In a second motion to the court, Verge asked that the venue be changed based on these statistics.
The trial court again denied the motion, stating there may be some jurors who fit into several categories, no single question disqualified a majority and, after removing clearly unqualified jurors, there would still be a substantial number remaining from which to select a fair and impartial jury.
Out of the 174 individuals included on the venire, approximately 119 were interviewed before the necessary 36 were passed for cause. Twenty-one were excused for knowledge, a substantial number were excused for reasons such as health and work concerns, and a small percentage were challenged and dismissed for racial prejudice. Fifteen of the 36 venirepersons remaining in the jury pool prior to peremptory challenges had been challenged for cause by the defense, but only 4 were due to proximity of the jurors to the crime scene or victims; the other 11 were based on other factors.
Out of the final 12 selected for the jury, none had any familiarity with the victims or their families. Each one answered affirmatively the question “If you were sitting in the place of the defendant, Robert Verge, charged with the same offenses, would you be willing to have a juror in your present frame of mind sit in judgment on your case?” The great majority were from the surrounding towns in Dickinson County who knew little about the basic facts of the case. The record reflects that Verge was provided a jury free from community influence.
In the past, we have not relied on statistics but, rather, we have focused on the difficulties encountered in impaneling a competent and unbiased jury. In Higgenbotham, we stated that in Jackson, Stoajford, and Anthony, the respective defendants did not experience undue difficulties in impaneling their juries, under facts comparable to our present case, as well as those faced in Higgenbotham. Additionally, there was no administration of death penalty nor racial discrimination issues in the Higgenbotham case. The selection of the jury in this matter took some 4 Vz days which while lengthy is not unduly extensive in a case of this difficulty. We pre viously stated in State v. Grissom, 251 Kan. 851, 928, 840 P.2d 1142 (1992), that the denial of a motion to change venue in a case was not unreasonable where it took 4 days to complete and pick a jury.
Additionally, there was not sufficient publicity to establish prejudice nor was any false information published in the community that affected jury selection. There were extreme statements relating to publicity made by several potential jurors, but we have previously held that media publicity alone never establishes prejudice. See State v. Ruebke, 240 Kan. 493, 500-01, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987).
Verge has not shown that a real problem concerning racial prejudice existed in the Dickinson County jury pool different from any other counties. Several potential jurors were stricken for cause on this complaint, but the number overall does not factually support the claim for change of venue.
The trial court considered Verge’s venue study, but also was justified in giving consideration to the State’s surveying process, which had different results.
Verge’s final contention that his expert was unable to give his opinion as to whether a fair jury could be empaneled is without merit. This was not within Dr. Beisecker’s area of expertise and was an attempt to invade the province of the court in opining as to the ultimate issue to be decided. The evidence clearly shows that the jury selection process was lawful and proper and resulted in a fair and impartial jury. Based on all the reasons previously set forth, we hold the trial court did not abuse its discretion in overruling the motions for a change of venue. We hold Verge’s request for a new trial based on the lack of change of venue must be denied.
Failure to excuse prospective jurors for cause
Verge contends the trial court failed, as required under K.S.A. 22-3410(2)(i), to remove numerous jurors for cause because there was doubt that they could act impartially and without prejudice to the substantial rights of any party. We have held we will not reverse a ruling of the trial court under this claim absent a showing of abuse of discretion or unless the decision was clearly erroneous. State v. Dixon, 248 Kan. 776, 788-89, 811 P.2d 1153 (1991). We have also stated: “[T]he trial court is in a better position than this court to view the demeanor of prospective jurors as they are questioned.” 248 Kan. at 788.
Verge’s contention relates to 15 potential jurors whom he alleges should have been discharged for cause. However, both sides agree that Verge used 12 of his peremptory challenges to strike objected-to venirepersons and the State struck 2 of the potential jurors about whom Verge complains.
Verge argues that because he was forced to use his peremptory challenges to remove these complained-of jurors, he was denied his fuE panoply of rights afforded to him under Kansas law and he should be granted a new trial. In support he cites a Ninth Circuit Court of Appeals opinion. That opinion was recently overturned by the United States Supreme Court. See United States v. Martinez-Salazar, 146 F.3d 653 (9th Cir. 1998), rev'd 528 U.S. 304, 145 L. Ed. 2d 792, 120 S. Ct. 774 (2000).
Verge’s argument has been considered by this court and denied in State v. Plaskett, 271 Kan. 995, 1029, 27 P.3d 890 (2001); State v. Donesay 270 Kan. 720, 725-26, 19 P.3d 779 (2001); and State v. Manning, 270 Kan. 674, 690-95, 19 P.3d 84 (2001).
In these cases, the defendants contended they were denied due process by being forced to use peremptory challenges to strike clearly unquaEfied jurors. However, the defendants chose to exercise their chaEenges to strike the questionable venirepersons, and we found no reversible error. We need not restate our previous clear holdings on this issue.
It is thus clear as to aE but one of the potential jurors that no possible prejudice existed due to their absence from the final jury panel.
One veniremember of whom Verge complains did remain on the jury and in fact became its foreman. Verge complains that this juror should have been excused because he felt African-Americans had a propensity for violence. We need not recite the entire questioning, but it is clear that this juror’s answers to questions concerning violence and African-Americans related only to societal situations and depended upon the atmosphere, nurturing, and rais ing of the individual. It should also be noted that this juror stated he was not in favor of the death penalty, but agreed this did not disqualify him from being a juror. In denying the motion to excuse for cause, the trial court stated that considering societal issues concerning the defendant’s background was not sufficient to sustain a challenge for cause.
Verge characterizes these statements as being racial and claims he is entitled to a jury free of such individuals. He relies on Georgia v. McCollum, 505 U.S. 42, 58, 120 L. Ed. 2d 33, 112 S. Ct. 2348 (1992), Alexander v. Commonwealth, 862 S.W.2d 856 (Ky. 1993), Farias v. State, 540 So. 2d 201 (Fla. Dist. App. 1989), and People v. Blyden, 55 N.Y.2d 73, 432 N.E.2d 758 (1982).
The McCollum opinion found that defendants cannot use peremptory challenges to eliminate jurors solely based on race, which is totally distinguishable from our situation. 505 U.S. at 58-59. In Alexander, the Kentucky Supreme Court found that the trial court abused its discretion by refusing to strike a juror for cause who stated that she did not like interracial marriages and would consider less credible the testimony of a witness married to someone of a different race. 862 S.W.2d at 864-65. In Farias, it was held the trial court erred in the trial of a Hispanic when it refused to excuse a venireperson for cause who outrightly tied the influx of crime and drugs with the entrance of the Latin community into the country. 540 So. 2d at 202-03. Finally, in Blyden, the New York Court of Appeals found the trial court erred in refusing to excuse a potential juror who openly expressed to the court his dislike for minorities. 55 N.Y.2d at 78-79. None of these decisions strike even close to the facts of our present case.
The potential juror in question was indifferent to interracial marriage. He believed that racism is a problem in Kansas but expressed that he had no negative feelings toward African-Americans and had never been afraid of someone of a different race. He explained during voir dire that he did not believe different races were innately disparate, and his answer was solely based on societal and environmental factors. His testimony was correctly viewed by the trial court, which ruled he should not be dismissed for cause. Verge has failed to show that the inclusion of the potential juror in question in the jury prejudiced him in any way. This issue is without sufficient merit to require a new trial.
Sufficiency of evidence to support conviction of capital murder
Verge next argues the evidence is insufficient to show that he premeditated the killings of Kyle and Chrystine Moore.
When reviewing the sufficiency of the evidence in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000).
We recently restated our standard of review for premeditation in State v. Alvidrez, 271 Kan. 143, 148, 20 P.3d 1264 (2001), in this manner:
“Premeditation is the process of thinking about a proposed killing before engaging in the homicidal conduct. State v. Rice, 261 Kan. 567, 587, 932 P.2d 981 (1997). Premeditation and deliberation may be inferred from the established circumstances of the case, provided the inference is a reasonable one. In such a case, the jury has the right to make the inference. State v. Buie, 223 Kan. 594, 597, 575 P.2d 555 (1978).”
We further said in State v. Henry, 263 Kan. 118, 130, 947 P.2d 1020 (1997):
“We held in [State v.] Moncla [, 262 Kan. 58, 73, 936 P.2d 727 (1997)] that while the element of premeditation is not inferred from use of a deadly weapon alone, an inference of premeditation may be supported where additional circumstances are shown, including lack of provocation, conduct before and after the killing, or the striking of a lethal blow after the deceased was rendered helpless.”
The evidence in the present case clearly shows premeditation and is sufficient to uphold the capital murder conviction. Both victims were within the security of their own residence at the time of the brutal attack. Nothing shows they provoked their attackers in any way. The forensic pathologist testified that both victims were shot, which ensured their deaths, after they were incapacitated. The number of wounds and bullet wounds were aggravated in number raising a strong showing from which the jury could have reasoned the murders were premeditated.
Verge’s argument appears to rest on a faulty presumption that where two individuals commit a heinous crime leaving substantial evidence but no eyewitnesses, they can blame each other, and the evidence will not support the conviction of either. Such a belief and presumption is completely misguided.
In addition, the testimony of Bostic confirms Verge’s role as one who participated in the stabbing and shooting of Chrystine Moore. While Verge would ask this court to disregard the testimony of Bostic because of the many changes in his stories and conflicts, “[i]t is not our function to reweigh the evidence or judge the credibility of witnesses.” State v. Chaney, 269 Kan. 10, 20, 5 P.3d 492 (2000).
Verge argues the physical evidence contradicts a witness’ testimony and the physical evidence controls. Evaluating the evidence is not our responsibility but that of the jury, and when we view the evidence, we are directed to do so in the light most favorable to the prosecution. When viewed in this manner, the evidence is sufficient to uphold the jury’s conviction of capital murder and the implicit finding of premeditation.
Prosecutorial misconduct during closing argument
Verge next contends the prosecutor committed reversible error by commenting about Verge’s failure to produce other witnesses who were present at the time Bostic said he heard Verge’s admission to the murders. Our standard of review for prosecutorial misconduct was recently stated in State v. Deiterman, 271 Kan. 975, 987, 29 P.3d 411 (2001), in this manner:
“The analysis of the effect of a prosecutor s alleged improper remarks in closing argument is a two-step process. First, we decide whether the remarks were outside die considerable latitude the prosecutor is allowed in discussing the evidence. In criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as the argument is consistent with the evidence. Second, we must decide whether die remarks constitute plain error; diat is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal. [Citations omitted.]”
During cross-examination, defense counsel accused Bostic of lying. During closing arguments, he attacked Bostic’s testimony that Verge made incriminating statements to him and three other individuals in a parked van, stating:
“Part of Bostic’s statements say, “Well, I was in the van, too, and I heard all of these terrible incriminating statements. I was with Ducky, I was with Wes, and I with Larry.’ Larry White, Wes — Wes Coleman, I believe — and Ducky Anderson. He’s with diese three people in the van that he associates with, and where are diey? Where are they to corroborate that Bostic was telling die trutii? I don’t know. We haven’t heard what they have to say, have we? Did they hear something in the van?”
In response to these comments, the prosecutor in closing stated:
“They say there were other people in the van, why aren’t they here? You could imagine die difficulties in getting them — [Defense objects.] In getting people here from die inner city in Kansas City — [Defense objects again.] And the point is diese witnesses were not unavailable to the defendant, either. [Defense objects again.] Mr. Ney and Mr. Sylvester are two fine attorneys, and if diere’s people that can help their client, they know how to get them in here. [Defense objects again.]”
After the jury retired, defense counsel moved the court to instruct the jury to disregard the noted comments of the prosecution, contending that Larry White was in the courthouse at the time of the trial and could have been called as a witness by the State. Additionally, it was contended that the State had interviewed all of the potential witnesses to Verge’s alleged admissions and could have called any of them. Without taking a response, the court ruled it would be improper to give the jury any further instruction with regards to the arguments of counsel beyond the general instruction already given and denied the motion.
This issue again brings to us the long-time friction between counsel for the prosecution and the defense over the failure to bring forth testimony which it is contended would be favorable or unfavorable as the case may be.
Our cases have generally held that comments in response to questions of why the prosecution did not call a certain witness allow the prosecution to equally respond.
For example, in State v. Robinson, 219 Kan. 218, 547 P.2d 335 (1976), the defendant, who was accused of rape, inferred during closing that the State did not produce the victim’s clothing because it would have been unfavorable. In response, the prosecution noted that the defendant could have brought the clothing items before the court had they been relevant and favorable to his case. In holding the comments to be within the bounds of appropriate conduct, our opinion stated:
"Here, the prosecutor’s remarks were certainly not inflammatory. They were invited by defendant’s closing argument. Defense counsel argued that the state had failed to introduce in evidence the clothing of the victim, and inferred that such evidence would have been favorable to the defendant. The state simply responded that the defense could also have caused the clothing of the victim and of the defendant to be produced at trial had the defense wished to do so. The argument was not in anywise a reference to defendant’s failure to testify. The clothing in question could have been identified by others, by the victim and by the arresting officer. The failure of a party to produce available evidence may give rise to an inference that it would be adverse to the party who could have produced it. State v. Wilkins, [215 Kan. 145, 147, 523 P.2d 728.] This applies equally to the prosecution and the defense.
“. . . There is no prejudicial error where the questionable statements of a prosecuting attorney are provoked and made in response to previous arguments or statements of defense counsel. [Citations omitted.]” 219 Kan. at 221.
Similar arguments and holdings are found in State v. Baker, 249 Kan. 431, 446, 819 P.2d 1173 (1991), and State v. Hanks, 236 Kan. 524, Syl. ¶ 7, 694 P.2d 407 (1985).
The comments by the prosecutor in this case were not inflammatory. They were merely invited by Verge’s attempt to infer that the testimony of other individuals present during his alleged confession would not have confirmed Bostic’s version of the event. Further, the allegation that one of those witnesses was under the control of the State and not available to Verge was in no way supported by the record. It appears in reality that each party was reluctant to call the individuals, who might or might not have testified as they were expected. This was not prosecutorial misconduct, and the prosecutor’s response to Verge’s invitation was justified under the facts of the case.
Admission of multiple photographs of crime scenes and autopsies
Verge argues several of the photographs of the Moores’ bodies introduced during the trial were unduly prejudicial, repetitious, and gruesome. He specifically challenges the introduction of 11 of the crime scene photographs.
The admission of photographs in a homicide case is a matter within the trial court’s discretion, and the trial court’s ruling will not be disturbed on appeal absent the showing of an abuse of that discretion. State v. Reed, 256 Kan. 547, 557, 886 P.2d 854 (1994). We have said: “While photographs which are unduly repetitious, gruesome, and without probative value should not be admitted into evidence, demonstrative photographs are not inadmissible merely because they are gruesome and shocking where they are true reproductions of relevant physical facts and material conditions at issue. [Citation omitted.]” State v. Calderon, 270 Kan. 241, 254, 13 P.3d 871 (2000). Further, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death, even though they may appear gruesome. State v. Smallwood, 264 Kan. 69, 83, 955 P.2d 1209 (1998).
In this case, Verge challenged the sufficiency of the evidence concerning premeditation. There were no eyewitnesses, and in order to show premeditation, the crime scene evidence was critical. The positioning of the bodies, blood stain patterns, and the wounds inflicted all contributed to the State’s establishing the element of premeditation.
Verge’s complaint as to the admission of exhibits 14 and 15, which were crime scene photographs of the victims from separate angles, was not raised by objection at trial and is, therefore, not an issue that can be raised for the first time on appeal. State v. Saleem, 267 Kan. 100, 109, 977 P.2d 921 (1999).
In State v. Sutton, 256 Kan. 913, 889 P.2d 755 (1995), photographs of the body as found at the crime scene, as well as the ones taken during the autopsy were introduced into evidence. In challenging the photographs as being repetitious, we upheld their admission, stating: “In the present case, the photographs taken where the body was found were introduced to corroborate the testimony of a law enforcement officer who described the appearance of the body, the clothing, and the surrounding ground. The photographs taken during the autopsy were used to corroborate and illustrate the testimony of the pathologist.” 256 Kan. at 921. Much of this is shown in the present case.
Verge challenges exhibits 23 and 24 as being repetitious and gruesome. Both exhibits were crime scene photographs, taken after items were removed from the top of the victims’ bodies. They were taken at slightly different angles from similar scenes but show movement of the victims by a third party and were not improper.
Verge presents a similar argument against the admission of exhibit 64 when compared with exhibits 72 and 73. These exhibits show different views of Kyle Moore’s face and head and the front of his upper body, arms, and chest in photographs taken by the pathologist, Dr. Mitchell. They show additional injuries not shown in other exhibits and were the basis for an opinion by the pathologist as to the cause of those injuries.
Verge objected to exhibit 65, which was utilized along with exhibit 66 by Dr. Mitchell to illustrate the types of weapons used to inflict the injuries and the manner in which they were used. This was clearly proper.
Exhibit 67, along with exhibits 68 and 69, was utilized by Dr. Mitchell to demonstrate the extent of the injuries after Kyle’s head and hair were cleaned. The exhibits are from different angles, and they do in fact demonstrate different injuries.
Exhibit 76 was objected to as being punitive when viewed with exhibit 77. These were photographs of Kyle’s hand to illustrate the severity of the injuries and manner in which the injuries occurred, and they were utilized in Dr. Mitchell’s testimony.
Exhibit 85, a photograph showing the gunshot wounds to the head of Chrystine Moore, was utilized by Dr. Mitchell to illustrate the path of the bullets and the cause of her death. Its admission was not improper.
Exhibits 87, 88, and 89 show the numerous gunshot wounds to Chrystine’s head and the lacerations caused by knife injuries. They were properly utilized in testimony of Dr. Mitchell.
Finally, exhibit 94, along with exhibits 95 and 96, shows stab wounds to other parts of the body of Chrystine and were used to explain the manner in which the wounds were inflicted and that they were defensive in nature.
All of the pictures of the crime scene are gruesome, but these were terrible murders based upon multiple stabbing and bludgeoning injuries and numerous gunshots. The objections of the defendant to the exhibits cannot be upheld. The trial court did not abuse its discretion in allowing sufficient photographs to show the crime scene and for the pathologist to use in testifying as to the causes of death. All of the exhibits were correctly introduced.
Use of defendant’s pre- Miranda statements to police for impeachment purposes
Verge next contends his statements to officers in Kansas should not have been used against him for impeachment purposes because he was not provided legal counsel during his extradition hearing from Missouri. He argues that had legal counsel been provided he would not have made any additional statements to law enforcement officials. Verge’s argument that he did not properly waive his right to counsel during the extradition hearings in Missouri is factually without merit because he was so informed of the right to counsel but declined. Additionally, he does not recognize that once he was delivered to the demanding state, proceedings in the asylum state can no longer be challenged. State v. Mick, 229 Kan. 157, 158, 621 P.2d 1006 (1981).
After a pretrial hearing in which it was found that his statements were voluntary but made without Miranda warnings, the trial court refused to allow the statements into evidence except for impeachment purposes. Once Verge testified, the trial court properly allowed the statements to be used. This was appropriate under State v. Roberts, 223 Kan. 49, 56-57, 574 P.2d 164 (1977), and subsequent cases, the most recent being State v. Alvidrez, 271 Kan. 143, 146, 20 P.3d 1264 (2001). This assignment of error is without merit.
Upward departure
Verge next contends that the upward durational departures on his aggravated robbery, aggravated burglary, and theft convictions were unsupported by substantial and compelling circumstances. motion for upward departure, and the sentences were ordered to be run consecutively after he completed his life sentence.
This issue is governed by our recent decision in State v. Gould, 271 Kan. 395, 23 P.3d 801 (2001), where we held our existing upward durational departure scheme is unconstitutional. We looked to and followed United States Supreme Court decision Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), wherein we held: “Apprendi dictates our conclusion that Kansas’ scheme for imposing upward departure sentences, embodied in K.S.A. 2000 Supp. 21-4716, violates the due process and jury trial rights contained in the Sixth and Fourteenth Amendments to the United States Constitution. Gould’s sentences must be vacated and remanded for resentencing.” Gould, 271 Kan. at 414. Likewise, Verge’s upward durational departure sentences for the aggravated robbery, aggravated burglary, and theft convictions must be vacated and this matter must be remanded for resentencing.
Is the Kansas hard 40 sentencing scheme unconstitutional?
Verge argues that the Kansas hard 40 sentencing scheme violates the guarantees of the Sixth and Fourteenth Amendments to the United States Constitution, as well as § 5 of the Kansas Constitution Bill of Rights. Since the filing of his brief, the constitutionality of the hard 40 sentencing scheme has been considered and upheld in response to the exact arguments Verge makes herein. See State v. Conley, 270 Kan. 18, Syl. ¶ 3, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001). Our decision has been subsequently affirmed by State v. Lopez, 271 Kan. 119, 142, 22 P.3d 1040 (2001). The arguments raised by Verge have been fully considered and answered in the above-stated opinions, and we will not repeat those discussions here.
Trial court’s imposition of the hard 40 sentence after jury refused to impose the death penalty
Verge next contends that K.S.A. 21-4635 violated his due process rights and, therefore, is unconstitutional because the trial court was permitted to set aside the jury’s determination that the mitigating circumstances did not outweigh the aggravating circumstances. This contention is not tenable.
A brief review of the capital murder law and hard 40 sentencing scheme is helpful in understanding this creative argument. Prior to 1994, K.S.A. 21-4624 established the procedure for determining whether an individual would receive a hard 40 sentence when convicted of first-degree murder. See L. 1990, ch, 99, § 4. The statute required that in order for a jury to impose a hard-40 sentence, it had to unanimously agree that a statutory aggravating circumstance or circumstances existed, and that those circumstances were not outweighed by the mitigating circumstances. In 1994, the legislature amended the statute to apply to the administration of the death penalty rather than the hard 40 sentence; however, the balancing test of aggravating and mitigating circumstances was not changed. L. 1994, ch. 252, § 4.
In the same year, K.S.A. 21-4635 was passed. See L. 1994, ch. 341, § 6. That statute required the trial court to determine whether a defendant convicted of capital murder when the jury did not impose the death penalty should be required to serve 40 years of mandatory imprisonment. The balancing test for the death penalty was incorporated, except that the court need not find the existence of aggravating circumstances beyond a reasonable doubt. Just as the jury was required to determine whether the aggravating circumstances were outweighed by the mitigating circumstances, so was the court. However, K.S.A. 21-4635(c) expressly permitted the court to make findings concerning the aggravating circumstances and the ultimate balancing of the aggravating and mitigating circumstances that might be contrary to those made by the jury during the death penalty sentencing phase.
Verge was convicted of capital murder, but the jury could not unanimously agree to impose the death penalty; therefore, he fell within the language of K.S.A. 21-4635(a), which stated “[T]he trial court shall determine whether the defendant shall be required to serve a mandatory term of imprisonment of 40 years or sentenced as otherwise provided by law.”
The trial court made the determination that the statutory aggravating circumstances existed and those circumstances were not out weighed by the mitigating circumstances. The court then imposed the hard 40 sentence pursuant to K.S.A. 21-4638.
Verge claims that the trial court, by balancing the circumstances presented to the jury yet coming to a different result, has usurped the role of the jury in violation of his due process rights. He cites no compelling authority but does analogize the court’s action to the improper removal of a juror as discussed in State v. Stafford, 255 Kan. 807, 823-25, 878 P.2d 820 (1994). Stafford was decided under the previous statutory scheme which required a hard 40 sentence to be determined by a unanimous jury and is in no way applicable to our facts.
There are a myriad of differences between a jury’s determination and that of a court. The jury had to find beyond a reasonable doubt that there were one or more aggravating circumstances. However, to impose the hard 40 sentence, the judge had to find proof of one of the aggravating circumstances only by a preponderance of the evidence. We need not repeat our analysis made in either State v. Spain (Spain I), 263 Kan. 708, 714, 953 P.2d 1004 (1998), or State v. Spain (Spain II), 269 Kan. 54, 4 P.2d 621 (2000), which is applicable here as it relates to the imposition of the hard 40 sentence. We specifically stated in Spain I that the rules and circumstances are different when the death penalty is not implicated. 263 Kan. at 709-10. Once the death penalty was not an issue, the trial judge’s obligations were clearly and properly set forth and were lawfully exercised in this situation. The arguments of Verge fail. The hard 40 sentence was properly entered.
CROSS-APPEAL
Lack of jurisdiction
The State asks this court to respond to the question “Can the defendant be convicted and sentenced for the capital murder of Kyle and Chiystine Moore in violation of K.S.A. 21-3439(a)(6) and for the first-degree murder of Chiystine Moore in violation of K.S.A. 21-3401?” While this is an interesting question the issue is not properly before us.
When jurisdiction to consider a question on appeal is in issue, we have stated:
“The right of appeal is entirely a statutory right; no appellate review is required by the United States Constitution, Griffin v. Illinois, 351 U.S. 12, 18, 100 L. Ed. 891, 76 S.Ct. 585 (1955), or the Kansas Constitution, State v. Smith, 223 Kan. 47, 48, 574 P.2d 161 (1977). . . . The Supreme Court has only such appellate jurisdiction as is conferred by statute pursuant to Article 3, Section 3, of the Kansas Constitution, and when the record discloses a lack of jurisdiction, it is the duty of the Supreme Court to dismiss the appeal. State v. Thompson, 221 Kan. [165] at 167, [558 P.2d 1079 (1976)]; State v. Mitchell, 210 Kan. 470, 471, 502 P.2d 850 (1972); State v. Shehi, 185 Kan. 551, Syl. ¶ 1, 345 P.2d 684 (1959).” State v. Ji, 255 Kan. 101, 102-103, 872 P.2d 748 (1994).
Also, “[a]n appellate court has the duty to question jurisdiction on its own initiative. If the record shows lack of jurisdiction for the appeal, the appeal must be dismissed.” State v. Snodgrass, 267 Kan. 185, 196, 979 P.2d 664 (1999).
The notice of cross-appeal filed by the State states it is appealing (1) the judgment of the district court on December 19,1997, “that the initial indictment in [this] case charging two counts of Capital Murder based on the killing of two individuals was multiplicitous and violated the double jeopardy clause of the Fifth Amendment,” and (2) the judgment of the district court on September 18,1998, “that the State could not amend its complaint by adding one count of premeditated first degree murder.” The stated statutory authority upon which the State contends it has the right to appeal was K.S.A. 22-3601(b)(l).
Jurisdictional deficiency appears on the face of the notice of appeal, as K.S.A. 22-3601(b)(l) only expresses what appeals are to be taken to the Kansas Supreme Court and provides no statutory authority for the appeal taken by the prosecution in this case. As we said in State v. Woodling, 264 Kan. 684, Syl. ¶ 2, 957 P.2d 398 (1998): “Grounds for jurisdiction not identified in a notice of appeal may not be considered by the court.”
In State v. Kerby, 259 Kan. 104, 106, 910 P.2d 836 (1996), the notice of appeal by the State was filed pursuant to K.S.A. 22-3603 (interlocutory appeals), and we dismissed the appeal, even though it was later contended that what was intended was to appeal a question reserved under K.S.A. 22-3602. In our case, the State is before us based on claimed statutory authority that is insufficient to state the grounds upon which the appeal is based. As Justice Abbott stated in Kerby: “In State v. G.W.A., [258 Kan. 703, 705-07, 906 P.2d 657 (1995)], this court found that the State’s notice of appeal was not sufficient because the court was required to search through the record to determine what the State’s appeal was actually based upon. This is what the State required the court to do in these appeals.” 259 Kan. at 106. Our situation is similar.
Even if the recitation of the two specific dated orders is somehow deemed sufficient so this cross-appeal could be considered a K.S.A. 22-3602(b)(3) appeal “upon a question reserved by the prosecution,” there was clearly no proper and timely objection or stated reservation of the right to appeal by the prosecution as is required by State v. G.W.A., 258 Kan. at 705-07.
Finally, as Verge argues, an examination of the trial court’s ruling of September 18, 1998, shows the State was not prohibited from filing a motion to amend and only held that if it did so, the issues would differ and another preliminary hearing would be necessary. The State elected to proceed based on the complaints as were then filed. This action gives no basis for appeal.
We have no jurisdiction to consider the State’s cross-appeal and it is dismissed.
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|
The opinion of the court was delivered by
Lockett, J.:
National Compressed Steel Corporation (National) sought to enjoin the Unified Government of Wyandotte County/ Kansas City, Kansas, (Unified Government) from undertaking an environmental examination of National’s property in conjunction with a pending eminent domain action the Unified Government initiated to acquire real property owned by National. The district court denied National’s petition for a permanent injunction. National appeals, claiming (1) the district court erred in denying its petition for a permanent injunction, and (2) it was inappropriate for the same district judge to sit in both the condemnation proceeding and the associated but independent petition for injunction.
National, a metals processing facility, owns eight tracks of land located in Kansas City, Wyandotte County, Kansas. National’s customers include city municipalities such as Kansas City, Missouri, and Kansas City, Kansas, and other customers, such as Proctor & Gamble, General Motors, and Colgate.
The Unified Government is a chartered municipal government pursuant to the constitution and laws of Kansas. The Unified Government filed the eminent domain proceeding on April 29, 1999, in the district court of Wyandotte County. On June 2, 1999, the Unified Government filed a motion for an order to allow entry upon National’s land to perform extensive environmental testing. National objected, contending that the statutory authority to enter upon its property and make examinations in an eminent domain proceeding did not include the right to perform the extensive environmental testing contemplated by the Unified Government. The district court disagreed and issued an order allowing the Unified Government to enter National’s property to perform environmen tal testing prior to acquiring any interest in National’s property, without requiring the Unified Government to acquire an easement for the environmental testing or to pay compensation for use of National’s land to perform the environmental testing.
National moved for reconsideration of the district court’s order. In the motion, National renewed its objection based on lack of statutory authority to conduct environmental testing. The motion further contended that (1) the district judge in an original eminent domain proceeding sits in an administrative, not judicial, capacity and, therefore, lacks subject matter jurisdiction to determine the nature and extent of a condemner’s powers, to interpret statutes regarding a condemner’s powers, and to order environmental testing; (2) environmental testing without condemnation of an easement is a taking without due process of law; and (3) ordering environmental testing without just compensation, notice, and opportunity for the landowner to be heard is a government taking of private property without due process of law. The district court denied National’s motion to reconsider.
National filed an application with the Kansas Court of Appeals to take an interlocutory appeal from the district court’s order to allow environmental testing. The application was denied by the Court of Appeals without opinion. National then filed with this court a petition for discretionary review of the Court of Appeals’ order denying interlocutory appeal. The petition was denied without opinion.
The matter proceeded in the district court. A hearing in the eminent domain proceeding was held on February 4, 2000. The Unified Government moved for immediate environmental testing of National’s property for soil and groundwater pollution.
The extensive environmental testing the Unified Government desires to undertake is described in a 111-page work plan with attachments prepared by Browning & Associates, Inc., dated September 7, 1999. The plan indicates the Unified Government proposed to drill 12 soil borings to a depth of 5 feet below groundwater level. It was estimated that the soil borings will be drilled to a depth of 20 to 25 feet below the ground surface. Eight of the borings will he converted to temporary monitoring wells to collect groundwater samples. The monitoring wells will be constructed with threaded connection, 1-inch ID, Schedule 40 PVC pipe capped at the bottom. The well screen will consist of 0.010 inch slots. A graded, clean cilica sand will be placed in the annulus of the screened interval of each well. A 2-foot bentonite pellet seal will be placed above the sand packing and a flush mount steel protective cover will be concreted into place. Each well will be protected with a locking cap. Soil and groundwater samples will be collected from each location. Monitoring wells with sufficient recharge will be purged by removing a minimum of three well volumes. Monitoring wells that do not recharge sufficiently will be purged until no additional groundwater can be collected. The soil samples will be continuously collected during the drilling operation by driving a split spoon sampler with a 140 lb. hammer. At least three, but not more than four, samples will be collected from each drilling location: the sample at the interface between the fill soil and the native soil, the sample directly above the groundwater level measured at the time of the drilling, and the sample from the bottom of the boring. Auger cuttings will be collected and stored in sealed drums at the site. If sample results indicate that there is no soil contamination, the auger cuttings will be spread out on the site. Water obtained from development and purging will be poured onto the ground to permeate into the soil at the site if the water is not contaminated. If the soil and/or water is contaminated, then disposal options will be explored. Bore holes not covered by permanent/temporary wells will be filled with either bentonite or a sand-cement mixture. The district court granted the Unified Government’s motion.
Prior to the February 4,2000, eminent domain hearing, National filed a petition for a temporary restraining order, preliminary injunction, and permanent injunction regarding environmental testing on its property. The action was assigned to Division 2 of the Wyandotte District Court but, pursuant to local court rules, the action was reassigned to Division 1, where the eminent domain proceeding was assigned and pending. The Unified Government moved to dismiss the injunction action. The motion to dismiss was denied. The parties then agreed that the original eminent domain proceeding would be stayed pending disposition of the pending injunction action. The district court eventually denied National’s request for injunctive relief from the environmental testing.
The Unified Government has not yet condemned an easement on National’s property for the purpose of performing the environmental testing and has not yet performed invasive environmental testing on National’s properly.
Improper Assignment of Action
National contends that it was inappropriate for the same district judge to determine both the condemnation proceeding and the associated but independent petition for injunction because the judge was required to review his own orders. National argues such action is in contravention of the checks and balances contemplated in Kansas law.
Supreme Court Rule 107 (2001 Kan. Ct. R. Annot. 152) provides, in part:
“In every judicial district the Supreme Court shall designate an administrative judge who shall have general control over the assignment of cases within said district under supervision of the Supreme Court. Assignment of cases shall be designed to distribute as equally as is reasonably possible the judicial work of the district. The administrative judge of each district shall be responsible for and have general supervisory authority over the clerical and administrative functions of the court.
“(b) Trial Court Case Assignment. Cases shall be assigned under the supervision of the administrative judge. Under his supervision, the business of the court shall be apportioned among the trial judges as equally as possible and he shall reassign cases as necessity requires. He shall provide for the assignment of cases to any special division established in the court. A judge to whom a case is assigned shall accept that case unless he is disqualified or the interests of justice require that the case not be heard by that judge.”
The Rules of Court for the 29th Judicial District of Kansas, Wyandotte County, provide that “[i]f there is another case or cases pending between the parties for the same cause, or if companion cases are filed, all cases shall be assigned to the division having the lowest case number.” Rule No. 3, Assignment of Cases.
The courts’ rules provide for broad discretion on the part of the chief judge in the assignment of cases and provide for judicial econ omy in the assignment of cases. Further, the two cases, although they include the same parties, involve different legal questions and theories. Questions regarding the condemner’s power of eminent domain and the extent of restrictions on the condemner’s power cannot be presented in the eminent domain action; therefore, National sought to raise these issues in its injunction action, a proceeding separate from the eminent domain proceeding. The fact that the same judge was assigned both cases did not create a conflict and did not require the judge to review his own orders.
Use of Injunction Procedure
Eminent domain is the right and power of government or lawfully designated authority to take private property for public use without the owner’s consent upon payment of just compensation. The right is an inherent power of the sovereign and comes into being with the establishment of government and continues as long as the government endures, but its exercise may be limited by the Constitution. Deisher v. Kansas Dept. of Transportation, 264 Kan. 762, Syl. ¶ 3, 958 P.2d 656 (1998).
The Unified Government argues that the district court erred in denying its motion to dismiss National’s injunction proceeding. The Unified Government contends that an injunction proceeding is not the proper procedure to obtain judicial consideration of National’s complaint. The Unified Government asserts that this is the only issue on appeal in this action.
It must be noted that the Unified Government did not appeal the district court’s denial of its motion to dismiss and did not cross-appeal. K.S.A. 2000 Supp. 60-2103(h) requires a cross-appeal from adverse rulings to obtain appellate review of those issues. Grimmett v. S & W Auto Sales Co., 26 Kan. App. 2d 482, 484, 988 P.2d 755 (1999). Nevertheless, we find it is necessary to determine if an injunction action properly invoked the jurisdiction of the district court to consider National’s claims.
The Unified Government contends that National’s petition sounds in the nature of inverse condemnation and argues that because an adequate remedy at law exists through an inverse condemnation suit for taking the subject property, an injunction action is not an appropriate remedy. The contention is without merit for two reasons.
First, inverse condemnation is an action or eminent.domain proceeding initiated by the property owners rather than the condemner and is available only where private property has been actually taken for public use without formal condemnation proceedings and it appears that there is no intention or willingness of the taker to bring such proceedings. Deisher, 264 Kan. 762, Syl. ¶ 4.
The Unified Government’s filing of condemnation proceedings for the property indicates an intention or willingness to take the property. Furthermore, the Unified Government has not yet conducted environmental testing upon National’s property. Therefore, a suit in inverse condemnation is not a remedy at law available to National.
Secondly, questions regarding the condemner’s power of eminent domain and the extent of restrictions on the condemner’s power cannot be presented in the eminent domain action because such proceeding does not provide a forum to litigate the right to exercise eminent domain or to determine the extent of that right. In an eminent domain proceeding, there is no right to litigate outside issues raised by the condemnee. The right to exercise the power of eminent domain and to determine other issues such as the necessity and the extent of the taking can only be litigated in a separate civil action, usually by suit for injunction. In re Condemnation of Land for State Highway Purposes, 235 Kan. 676, Syl. ¶¶ 1, 2, 3, 683 P.2d 1247 (1984).
Under the circumstances, the proper avenue for National’s grievance is an injunction proceeding. The district court did not err in denying the Unified Government’s motion to dismiss the injunction proceeding.
Injunctive Relief
Did the district court err in denying National’s request for injunctive relief? An injunction is an order to do or refrain from doing a particular act. K.S.A. 60-901. An injunction is an equitable remedy designed to prevent irreparable injury by prohibiting or com manding certain acts. An injunction is not appropriate if a remedy at law can furnish the injured party with the full relief to which he or she is entitled. 42 Am. Jur. 2d, Injunctions § 1, pp. 550-51. We have determined that under certain circumstances an injunctive action is proper to litigate the exercise of eminent domain and the extent of that right.
To obtain injunctive relief, National must show: (1) there is a reasonable probability of irreparable future injury to National; (2) an action at law will not provide an adequate remedy; (3) the threatened injuiy to National outweighs whatever damage the proposed injunction may cause the opposing party; and (4) the injunction, if issued, would not be adverse to the public interest. See Sampel v. Balbernie, 20 Kan. App. 2d 527, 530-31, 889 P.2d 804 (1995).
In Sampel, the Court of Appeals reversed the district court’s dismissal of a petition for injunctive relief under K.S.A. 60-901 et seq. to restrain an individual from harassing, assaulting, and threatening petitioner. The Sampel court relied on Mid-America Pipeline Co. v. Wietharn, 246 Kan. 238, 787 P.2d 716 (1990). These two cases note that injunctive relief is equitable in nature and a substantial showing is required before a court is warranted in ordering a party to do or refrain from doing a certain act. Kansas East Conf. of the United Methodist Church, Inc. v. Bethany Med. Ctr., 266 Kan. 366, 382-83, 969 P.2d 859 (1998).
To show it was entitled to injunctive relief, National provided testimony at the evidentiary hearing that (1) National’s customers include national corporations which are concerned about doing business with companies which may be subject to Superfund or other environmental liabilities; (2) if environmental problems are discovered through the Unified Government’s proposed testing, it is likely that National will lose some or all of its national corporations as customers, as well as, other customers, and it is likely that its operation could be destroyed; (3) if environmental problems are discovered at National through the Unified Government’s proposed testing, it is likely that National’s real property would be stigmatized, with the value and marketability of the property significantly reduced; (4) the Unified Government’s proposed testing would disrupt the day-to-day operations of National, creating additional costs and a reduction in profits for National; (5) the Unified Government’s proposed testing is likely to create adverse publicity for National which could have a negative impact on National’s operation and profitability; (6) if environmental problems are discovered as a result of the Unified Government’s proposed testing, National would be exposed to remediation obligations which do not currently exist, such as coming into compliance with various state and federal laws relative to the environment; (7) National has operated at its present location since 1952; (8) the present location of National is particularly suitable for operations as a metals recycling facility; (9) the subject property has been utilized for many years as a metals recycling facility; (10) the Unified Government in the eminent domain proceeding believes that it is necessary to do soil examinations of the subject tract to determine whether contamination has taken place and, if so, if the extent of the contamination is such that it makes the proposed development impractical; and (11) the Unified Government believes it needs to make this determination so that if the tracts are found to be substantially contaminated it may exercise its rights pursuant to K.S.A. 26-507(b), wherein it can abandon its condemnation action.
This showing is sufficient for the district court to consider injunctive relief in this case.
Subsurface Testing
The Fifth Amendment’s just compensation provision is designed to bar government from forcing individuals to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. First Lutheran Church v. Los Angeles County, 482 U.S. 304, 318-19, 96 L. Ed. 2d 250, 107 S. Ct. 2378 (1987).
K.S.A. 26-512 provides: “The prospective condemner or its agents may enter upon the land and make examinations, surveys and maps thereof, and such entry shall constitute no cause of action in favor of the owners of the land, except for actual damages thereto.” (Emphasis added.) National points out that the statute allows surface examinations but does not expressly authorize subsurface environmental testing. Our question is whether the statute is to be construed to provide that “examinations” encompass extensive subsurface environmental testing.
The interpretation of a statute is a question of law over which this court’s review is unlimited. This court is not bound by the district court’s interpretation of a statute. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000). A statute which confers the right to exercise the power of eminent domain is to be strictly construed in the fight of the objectives and the purposes sought to be attained by its enactment. Concerned Citizens, United, Inc. v. Kansas Power & Light Co., 215 Kan. 218, 231, 523 P.2d 755 (1974).
In City of Olathe v. Stott, 253 Kan. 687, 861 P.2d 1287 (1993), this court recognized that underground contamination necessarily affects the market value of real property. In Stott, the City had information about the contamination long before the City filed its condemnation proceeding. The landowner claimed the City should be estopped from claiming a reduction in property value due to contamination because the City had not timely declared the existence of contamination to the landowner. Stott is not helpful because the issue in that case was not whether subsurface testing was included within the definition of “examinations”; the issue was whether evidence of contamination is admissible in an eminent domain action or whether the Kansas Storage Tank Act, K.S.A. 65-34,100 et seq., preempts the Kansas eminent domain statutes and provides the exclusive relief available in Kansas for contamination damage resulting from leakage of underground storage tanks. Because there is no Kansas case on point, we will look to other jurisdictions.
Other Jurisdictions
The question of whether “examinations” in condemnation proceedings include subsurfacé environmental testing or core drilling has been addressed in other state courts. In Town of Darien v. D’Addario, 26 Conn. L. Rptr. 177 (Conn. Super. 1999), the Connecticut court held that a statute providing that a condemning authority may enter land for “the purpose of inspection, survey, borings and other tests” was constitutional because entering private property to conduct an inspection for a proposed condemnation fails to qualify as a taking. The D’Addario court found that “[a]n overwhelming majority of courts have held that authorizing an inspection and tests on land does not deprive the owner of his private use and possession, especially when the owner receives compensation for damages.” 26 Conn. L. Rptr. at _—
We note that the Connecticut statute provided the condemning authority the right to inspect, survey, and to conduct borings and other tests. The court noted that it is important that the landowner receive compensation for damages caused by the condemning authority in conducting the survey and test.
In Ind. State Highway Com’n v. Ziliak, 428 N.E.2d 275 (Ind. App. 1981), the Indiana court held that the trial court properly denied a request by a condemning authority to conduct an intensive archaeological survey upon the property prior to initiation of condemnation proceedings. The relevant eminent domain statute provided that the condemning authority may “enter upon any land for the purpose of examining and surveying the property sought to be appropriated.” Ill. Comp. Stat. ch. 32/11-1 (1980). The archaeological survey entailed very intrusive digging of the property, including 50-foot long and 6-foot wide trenches, or 50-foot square holes. The court concluded that the word “survey” did not include this type of activity. 428 N.E. 2d at 279.
In Missouri Highway & Transp. Com’n v. Eilers, 729 S.W.2d 471, 474 (Mo. App.) reh. denied (1987), the Missouri court held that a soil survey amounts to a “taking” and a condemning authority may not conduct a soil survey until it receives the property owner s consent or initiates judicial proceedings to condemn property for an easement to conduct the surveys.
In County of Kane v. Elmhurst Nat’l Bank, 111 Ill. App. 3d 292, 443 N.E.2d 1149 (1982), the Illinois court held that authority to go onto property for surveys and examinations prior to condemnation proceedings does not include authority to make subsurface soil and geological studies. The court stated:
“Constitutional restrictions on taking and damaging without just compensation (U.S. Const., amends. V, XIV, Ill. Const. 1970, art. I, sec. 15), however, limit the permissible scope of an order authorizing entry for preliminary survey and ap praisal purposes. A taking may not be allowed under the guise of a preliminary survey; the right of entry does not include the right to make permanent appropriation or cause more than minimal or incidental damage to property; and the entering party is free of liability ‘only to the extent that the entry or occupation is temporary, or the infliction of damage is incidental and incipient or preliminary.’ [Citation omitted.] Permissible entry ‘cannot amount to other than such innocuous entry and superficial examination as would suffice for the making of surveys or maps and as would not in the nature of things seriously impinge upon or impair the rights of the owner to the use and enjoyment of his property.’ [Citation omitted.] Thus the County may enter the property, appraise the premises, and place stakes on the property as specified. [Citations omitted.] The order ought not be read, however, as authorizing any cutting of trees or damage to crops, except insofar as these are unavoidable incidents (for which the county must pay damages) of permissible preliminary surveying. [Citations omitted.]
“Similarly the part of the order authorizing soil borings and a geologic study without the landowners’ consent or a prior condemnation proceeding would be invalid even if statutorily authorized. Such drilling and excavation, even where subsequent backfilling has been required, has been properly recognized as a substantial interference with the landowners’ property rights rather than a minimally intrusive preliminary survey causing only incidental damage. [Citations omitted.] Rather than hold that such drilling and surveying is authorized under a statute which we would then have to invalidate, we decline to read the power to make tlie contemplated soil and geologic survey into section 5-803’s grant of power to mak[e] surveys.’ [Citation omitted.]” 111 Ill. App. 3d at 298-99.
In Eilers, the Missouri court held that a precondemnation soil survey without the landowner s permission was an unconstitutional taking of property without just compensation. The precondemnation authority is set out in Mo. Rev. Stat. §§ 227.120(13) (2000) and 388.210(1) (2000). Section 227.120(13) provides in part:
“The state highways and transportation commission also shall have the same authority to enter upon private lands to survey and determine the most advantageous route of any state highway as granted, under section 388.210, RSMo, to railroad corporations.”
Section 388.210(1) gives railroads the power
“[t]o cause such examination and survey for its proposed railroad to be made as may be necessary to the selection of the most advantageous route . . . .”
The Missouri Highway and Transportation Commission contended a soil survey is within the ambit of the “survey” authorized by the statutes. Eilers appealed.
The Eilers court cited other authorities which have held that the right to conduct a precondemnation survey is not authority to excavate or drill on private property. The court stated:
“In County of Kane v. Elmhurst Nat. Bank, 111 Ill. App.3d 292, 67 Ill.Dec. 25, 443 N.E.2d 1149 (1982), the county sought to enter private land to conduct surveys, appraisals and subsoil tests pursuant to a highway construction project. The landowners claimed the county was without authority to conduct the tests. Section 5-803 of die Illinois Road and Bridges Act permitted ‘making surveys and the determination of the amount of property necessary to be taken or damaged in connection with any highway project . . .’ The court found that while surface surveys were authorized by § 5-803, subsurface and geologic surveys were not. Soil surveys ‘involve substantial and not merely incidental disruption and damage to the landowners’ property.’ Id. 67 Ill. Dec. at 28, 443 P.2d at 1152. The county had to either obtain the landowner’s consent for the soil survey or file a prior condemnation action before it could enter onto the land. Id. 67 Ill. Dec. at 30, 443 P.2d at 1154. In Hicks v. Texas Municipal Tower Agency, supra, the court analyzed a statute virtually identical to § 388.210(1) and determined that the word ‘survey’ authorized a ‘lineal survey’ and not core drilling operations. 548 S.W.2d at 955-56. See also, Mackie v. Mayor and Com’rs of Town of Elktown, 265 Md. 410, 290 A.2d 500 (1972), Jacobsen v. Superior Court of Sonoma County, 192 Cal. 319, 219 P. 986 (1923). Finally, statutes should be construed to avoid constitutional problems. First National Bank of St. Joseph et al v. Buchanan County et al, 205 S.W.2d 726, 730 (Mo.1947). As discussed in the next portion of this opinion, if § 227.120(13) and § 388.210(1) are read to authorize soil surveys, they will violate constitutional restrictions on the taking and damaging of private property without just compensation.
“The Commission proposes to enter Eilers’ land with a four wheel drive wagon, drill ten to twelve holes and remove approximately five pounds of soil from the property. The Commission may also drill a two-inch core of the subsurface rock. All this is to be done without the landowner’s consent. Although the soil survey is not an intrusion of an overwhelming magnitude, it is still an intrusion and interference with Eiler’s rights as a private landowner. A soil survey conducted without Eilers’ consent subverts his right to use and enjoy his property in fee simple absolute. This is not constitutionally permissible. Accordingly, the soil survey amounts to a ‘taking’ and the Commission may not conduct the soil survey until it receives Eilers’ consent or initiates judicial proceedings and pays the damages for a temporary easement before entering the land. [Citations omitted.]
“While it may be burdensome for the Commission to condemn a temporary easement for a soil survey and then later condemn the entire tract for the highway, the constitutional mandate that property not be taken or disturbed without prior compensation, and the landowner’s right to freely use his land supersede any efficiency concerns. In addition, the Commission has in the past apparently ob tained landowners’ consent to conduct soil surveys.” Eilers, 729 S.W.2d at 473-74.
In Burlington Northern and Santa Fe Ry. Co. v. Chaulk, 262 Neb. 235, 631 N.W.2d 131 (2001), the Nebraska Supreme Court held that investigations and tests proposed by a railroad amounted to a temporary taking and exceeded activities authorized by the eminent domain statute governing a condemner’s entry upon land. The eminent domain statute authorized “any condemner ... to enter upon any land for the purpose of examining and surveying [the] same in contemplation of bringing or during the pendency of condemnation proceedings under sections 76-701 to 76-724.” Neb. Rev. Stat. § 76-702. Accordingly, Neb. Rev. Stat. § 76-702 permitted and limited the condemner’s entry upon the property owners’ land to “examining and surveying.” The railroad argued that pursuant to the statute, it had the authority to enter upon the property owners’ land to conduct geotechnical studies in which core soil samples were to be drilled approximately every quarter of a mile along a proposed bypass route. The railroad argued that its proposed “investigations” were consistent with “examining” as authorized by statute. The Nebraska court disagreed:
“Tests similar to those proposed by BNSF have been considered by other courts. It has been observed that core drilling, such as BNSF proposes to conduct upon the defendant property owners’ land in the instant case, is ‘an intrusion and interference with [one’s] rights as a private landowner,’ which ‘subverts [the landowner’s] right to use and enjoy [the] property in fee simple absolute.’ [Citation omitted.] Such intrusion, described as ‘dig[ging] up private property,’ has been defined as a temporary taking, for which a temporary easement must first be obtained. [Citations omitted.]
“The power of eminent domain must be exercised ‘in strict accordance with its essential elements in order to protect the constitutional right of the citizen to own and possess property against an unlawful perversion of such right.’ [Citation omitted.] The power of eminent domain may be exercised only on the occasion, and in the mode and manner, prescribed by the Legislature. [Citation omitted.] Statutes conferring and circumscribing the power of eminent domain must be strictly construed. [Citation omitted.] While the language of § 76-702 permits a condemner to enter upon land for the purpose of ‘examining and surveying [the] same,’ it does not permit entiy for the purpose of conducting the type of physical invasion to the land proposed by BNSF. The geotechnical tests and investigations that BNSF seeks to conduct upon the defendant property owners’ land exceed the statutory authority given to BNSF under § 76-702 for which injunctive relief of entry for the purpose of conducting such tests and investigations was sought in die petition. The tests amount to a temporary taking which must be accomplished in the mode and manner prescribed by the Legislature for the exercise of the power of eminent domain. [Citations omitted.]” 262 Neb. at 244-46.
In Hailey v. Texas-New Mexico Power Co., 757 S.W.2d 833, 834-35 (Tex. Civ. App. 1988), the property owner asserted that the trial court abused its discretion and erred in granting a temporary injunction prior to condemnation, allowing the condemning authority to conduct soil boring, soil testing, and subsurface investigation because such examinations constituted a “taking” of private property. The court stated:
“This suit for temporary injunction is not a condemnation proceeding, although it is intimately connected to a contemplated condemnation proceeding. And the rule is that in condemnation proceedings the requirements of the statutes are to be strictly followed and such rule is for the benefit of the landowner. [Citations omitted.]
“[The condemned is an electric power company whose authority for condemnation arises from Articles 1435 and 1436 of the Revised Civil Statutes. Article 1436 provides that ‘Such corporation shall have the right and power to enter upon, condemn and appropriate the lands, ... of any person . . . .’
“In Lewis v. Texas Power & Light Co., CCA (Dallas) NRE, 276 S.W.2d 950 (1955), the court held that Article 1436 gave electric companies the implied statutory authority to enter property prior to condemnation for the purpose of making a preliminaiy lineal survey with a view to selecting lands to be acquired. Lewis relied on prior cases interpreting Article 6318 (giving railroads right of condemnation) to give the condemning authority (the railroad) the right to make a ‘lineal survey prior to condemnation.
“Puryear v. Red River Authority of Texas, CCA (Amarillo) NRE, 383 S.W.2d 818 (1964), held that the statutes granting water control districts the authority‘to go upon any lands for the purpose of making surveys’ included the right for the water districts to conduct core drilling operations. Turyear reasoned that allowing a water district to enter and survey the land without core drilling to determine the feasibility of locating a dam on the property would be contrary to the legislative intent.
“Hicks v. Texas Municipal Power Agency, CCA (Houston 1st) NRE, 548 S.W.2d 949 (1977), involved Article 6318 (relied on by Lewis to permit a power company to make a lineal survey prior to condemnation under Article 1436). The court recognized the implied authority to conduct a preliminary lineal survey prior to condemnation (citing Leiois), but refused to extend this right to include core drilling under Article 6318.
“While Article 1436 has been expanded and interpreted in Lewis to allow a preliminary lineal survey prior to actual condemnation, we refuse to further erode the strict construction of our eminent domain statutes to permit core drilling or soil boring as incidental to a lineal survey. We reverse the order of the trial court insofar as it permits TNP to conduct core drilling, soil boring and subsurface soil testing on the land of appellants.” 757 S.W. 2d 834-35.
Although Texas follows the rule that statutes permitting condemnation are to be strictly construed, we note that invasive drilling and coring is permitted in the state of Texas as an examination of the property to be taken for specific statutory purposes such as constructing a dam and setting up water districts. See Puryear v. Red River Authority of Texas, 383 S.W.2d 818 (Tex. Civ. App. 1964). In Puryear, a Texas court interpreted the statutory right of a water authority to “make surveys” to include the power to conduct core drilling. Puryear involved an injunction restraining a landowner from interfering with core drilling operations upon his land by the Red River Authority. The court affirmed the injunction, noting that the term “survey” should be interpreted in light of the authority’s statutory duty to control, preserve, and develop the waters of the Red River. The court reasoned:
“To permit appellee the right to enter land and make surveys but deny it the right to conduct core drillings to determine the feasibility of locating a dam would be contrary to the clear intention of the Legislature. Surveying, without the right to test underground stratum, would be of little value to water control districts. Core drilling to determine the underground stratum is an essential step in determining the location of proposed dams.” 383 S.W.2d at 821.
We note the Kansas Legislature has enacted specific statutes that allow core drilling. Under K.S.A. 65-34,108(a)(2), the Secretary of Health and Environment is authorized to enter at reasonable times any establishment or place where a storage tank is located, to inspect and obtain samples of any regulated substance contained in such storage tank and to conduct or require the owner or operator to conduct monitoring or testing of such storage tank, associated equipment, tank contents or surrounding soils, air, surface water, or groundwater. Pursuant to K.S.A. 65-170b, the Secretary of Health and Environment may enter any property or facility which is subject to the provisions of K.S.A. 65-161 to K.S.A. 65-171j, to observe, monitor, collect samples, and examine records and facilities to determine compliance or noncompliance with state laws and rules and regulations relating to water pollution or public water supply. Municipalities are allowed by statute to enter property in an urban renewal area to make surveys, appraisals, soundings, or test borings. K.S.A. 17-4748.
The power of eminent domain must be exercised in strict accordance with its essential elements in order to protect the constitutional right of the citizen to own and possess property against an unlawful perversion of such right. The power of eminent domain may be exercised only on the occasion and in the mode and manner prescribed by the legislature. Statutes conferring and circumscribing the power of eminent domain must be strictly construed.
Here, the Unified Government’s purpose for environmental testing is not to correct an environmental problem or to protect the public from groundwater pollution but to determine the economic viability of the condemnation project. We agree that environmental contamination is relevant to appraising the value of property sought to be condemned. However, subsoil testing is beyond the scope of the examination authorized by K.S.A. 26-512. Therefore, we reverse the district court’s denial of National’s petition for injunction.
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|
The opinion of the court was delivered by
Allegrucci, J.:
Bxyon Greene appeals convictions of second-degree murder and aggravated battery. The issues raised by Greene are: denial of his Sixth Amendment right to effective assistance of counsel, limitation of the testimony of a defense witness, erroneous admission of a victim’s statement, and failure to instruct on Greene’s diminished capacity and on voluntary manslaughter.
Approximately a half hour after midnight on January 20, 1997, police were dispatched to 1139 Georgia in Kansas City, Kansas, where shooting had been reported. As police approached the address, they met up with an automobile in which one of the shooting victims was being transported. At 1139 Georgia, the police found another victim on the dining room floor.
Darius Flournoy was the victim found in the house. At the hospital where Flournoy was taken shortly after the incident, he iden tified the defendant as the person who shot him. Flournoy died during surgery. An autopsy revealed that a bullet had tom Flournoy’s aorta and that he died from massive internal bleeding caused by the gunshot wound to his mid-abdomen. There was no exit wound. Another bullet had grazed Flournoy’s neck.
Durand Womack was the other victim. After defendant shot Flournoy he turned the gun on Womack, who had put his hands in front of his face with the palms out. Defendant wounded Womack in both his hands and his mouth.
Police found two spent bullets in the house. An officer testified that the lack of shell casings at the scene would be consistent with a revolver being used to shoot Flournoy and Womack. There was a bloodstain in the doorway from the dining room that led toward the bathroom.
One of the occupants of the house was found by police passed out on the couch. The other occupant had gone to work at approximately 10 p.m and did not return until approximately 5 a.m. There were approximately 10 people in the house at the time of the shooting. Three or four women were in the living room. Most of the men were in the dining room where they were rolling dice for money on a blanket-covered table.
Greene admitted shooting Flournoy and Womack, but he claimed to have done so without forming the intention to kill or wound. Greene, who was 22 at the time of the shooting, and Flournoy were well acquainted from sharing a bedroom in a foster home for approximately a year-and-a-half when they were teenagers. Their foster mother testified that the boys had not gotten along because Flournoy was overbearing, made Greene do things for him all the time, and “kind of bullied him.” Greene testified that when Flournoy moved in “It was like he became my pimp . . . .” Greene catalogued a number of brutish things Flournoy did to him, including threatening to make his life even more miserable if he told the foster parents what was going on and, on two occasions, making Greene suck his penis.
Womack and Greene told veiy different versions of the shootings. According to Womack, defendant pulled a gun from his pocket and began shooting without any provocation. Although de fendant admitted shooting at Flournoy and Womack, he claimed to have fired his friend’s gun that was lying on the table and to have fired it in an instantaneous reaction to a psychologically devastating taunt by Flournoy.
Womack testified that he and Flournoy arrived at 1139 Georgia at approximately midnight. He did not participate in the dice game because he had no money. He said that he was seated in a chair watching the others roll dice. Flournoy was standing next to Womack. Defendant was standing. There was music playing. Defendant said something that Womack did not catch. Then immediately defendant pulled a gun out of his pocket and shot Flournoy before pointing the gun at Womack and shooting him.
Greene testified that he considered the gathering at 1139 Georgia to be a celebration because he had just learned that he was going to be a father. Greene told everyone at the house that he would buy the drinks, and he left to go to the liquor store. When he got back to 1139 Georgia with the drinks, Flournoy, Womack, and Greene’s friend Mike were there. Greene and his friend later made another trip to the liquor store, and, before they reentered the house, Greene returned the gun Mike had asked him earlier in the day to carry. With Greene and his friend back, the men went into the dining room, put a blanket on the table, and started a dice game.
According to Greene, Womack was in and out of the game. Defendant told him to make up his mind. Womack decided to get out, and he left the room to go into the bathroom. Flournoy remarked on Greene’s making Womack choose. Greene responded, “I’m not scared of you, I’m not a kid anymore.” Someone told Greene and Flournoy to take their dispute outside. Then Flournoy threw names like “bitch ass nigger” at Greene and said, “He can suck this dick.” At that, Greene hit the table in a rage, “flashed,” and blacked out. His friend’s gun, which was lying on the table, made a noise. Greene picked up the gun and shot Flournoy. Womack flung open the bathroom door, and it hit the wall. Greene pulled the trigger again.
Following his convictions, Greene’s trial counsel filed a notice of appeal on January 30, 1998. Appellate counsel was appointed, and the appeal was docketed on April 13, 1998. Since Greene’s claim of ineffective counsel had not been heard by the trial court, appellate counsel, pursuant to State v. Van Cleave, 239 Kan. 117, Syl. ¶ 2, 716 P.2d 580 (1986), moved to remand for a determination of the defendant’s claim of ineffective assistance of counsel. This court, on August 24, 1999, granted the motion but retained jurisdiction of the appeal. A hearing on the defendant’s motion was held in the trial court on December 3,1999. The matter was taken under advisement, and on September 18, 2000, the trial court denied the motion by memorandum decision. Appellate counsel filed a supplemental notice of appeal from that decision on October 2, 2000.
We first consider if Greene was denied his Sixth Amendment right to effective assistance of counsel. The principal contention was that trial counsel’s failing to request a continuance when defendant changed his story during jury selection fell below prevailing professional standards and prejudiced him. After a hearing, the trial judge concluded that Greene’s argument did not have merit:
“Defense counsel was actively pursuing an alibi defense arid taking appropriate action to secure the attendance of alibi witnesses. Apparently, only upon learning that his fiancee and brother would not voluntarily come to court arid provide false testimony, did defendant come clean with his lawyer. The pickle the defendant found himself in at that point was of his own making, not that of the lawyer’s. The lawyer was forced to change horses in the middle of the stream which is not an easy thing to do. But the blame rests squarely on the shoulders of the defendant, not his lawyer.”
There is no question that Greene created a very difficult situation for himself and his counsel. What is at issue, though, is whether Greene’s defense attorney’s actions in response to the difficult situation were deficient.
Greene lied to his attorney and caused his attorney to spend his trial preparation time pursuing a false and worthless alibi defense. Unable to secure the attendance of alibi witnesses, Greene’s attorney requested a continuance on the morning trial was to begin. The request was denied, and voir dire commenced. Greene waited until jury selection was well under way before revealing to his attorney that he actually had shot both victims and that his prior relationship with Flournoy was at the heart of it. When asked why he had not disclosed the sexual incidents to his attorney, Greene said:
“I felt I — you know, I felt I didn’t have a chance regardless. I mean I kept it hid, one, because it’s not something that you can just tell somebody. I mean, you know, that’s — that’s something that I thought would be put away forever, you know. I didn’t — I didn’t ever know that I was gonna have to ever come to this point.”
In consequence, Greene’s attorney learned for the first time during juxy selection that his client had shot the victims and that Greene had a potentially significant past relationship with Flournoy. Not long before jury selection began, Greene’s attorney’s request for a continuance for the purpose of securing alibi witnesses had been denied by the trial court. In these circumstances, Greene’s attorney did not request a continuance for the purpose of preparing a new defense.
The scope of an appellate court’s review of the trial court’s decision on an ineffective assistance of counsel question is de novo. State v. Rice, 261 Kan. 567, Syl. ¶ 16, 932 P.2d 981 (1997). It is well established that “[t]he proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances.” 261 Kan. 567, Syl. ¶ 14. The complaining defendant must show that “counsel’s representation fell below an objective standard of reasonableness.” 261 Kan. 567, Syl. ¶ 14. Judicial scrutiny of counsel’s performance must be highly deferential, must evaluate the conduct from counsel’s perspective at the time, and “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” 261 Kan. 567, Syl. ¶ 14. Thus, the question for this court is whether Greene’s attorney’s performance in the circumstances fell below an objective standard of reasonableness.
Greene has cited a number of cases from other jurisdictions in which defense counsel’s failing to request a continuance in order to come to grips with some new information or new development was found to deny a defendant’s right to effective assistance of counsel. The need for a continuance in most of the cases cited by Greene was due to the prosecution’s delay in turning over evidence or the unavailability of witnesses.
The State urges and the trial court seemed to have assumed that the inquiry was over when it was determined that it was the defendant’s own failure to timely reveal the truth that necessitated a continuance in order to prepare an estimable defense. No authority was cited by either the trial judge or the State for this position, nor has our research revealed any.
In this same vein, the State goes even further and asserts that an “obligatory ethical complaint” about counsel’s deficient performance must be made to the Disciplinary Administrator. There is no such requirement. There is no allegation of any ethical deficiency in counsel’s representation of Greene. A claim of ineffective assistance of counsel is not a condemnation of counsel. Instead, its purpose is to ensure a defendant’s constitutionally protected right to a fair trial.
One of the many cases cited by Greene involved a defendant’s delayed disclosure creating the need for a continuance. See Gates v. State, 393 N.W.2d 417 (Minn. App. 1986). Gates waited until 2 days before trial to disclose to his attorney that someone named Mickey Johnson committed the crime Gates was charged with. Gates’ attorney proceeded to trial rather than requesting a continuance. The Court of Appeals had viewed the failure as one of many making up a deficient performance. The Minnesota Supreme Court, however, reversed the decision of the Court of Appeals on the ground that the defendant had not met his burden of proving prejudice. 398 N.W.2d 558 (Minn. 1987).
Gates’ attorney’s failure to malee the necessary adjustments when confronted with an unforeseen, although perhaps foreseeable, event typifies the performance deficiencies in the cases that support Greene’s position. The common thread is counsel’s failure to deviate from the planned course of action as new or unexpected matters arose. Trial by ambush has been eclipsed by modem procedural rules and practices, but trials are human affairs, hence, not entirely predictable. From a number of other states’ courts, Greene cites cases in which defense counsel failed to exercise flexibility in reacting to something unplanned and in which the court consid ered pliancy to be necessary for reasonably competent representation.
In People v. Mejia, 247 Ill. App. 3d 55, 617 N.E.2d 799 (1993), the State waited until trial was under way to give timely requested police reports to defense counsel. One of the reports was exculpatory and contradicted other testimony. Defense counsel failed to request a mistrial or continuance. The court held that the defendant was deprived of effective assistance when, among other things, defense counsel stipulated to contradictory key witness testimony rather than calling for impeachment testimony. 247 Ill. App. 3d at 63-66. In another Illinois case, the court concluded that defense counsel’s failure to react positively to being informed by the State of a witness who may have had exculpatory evidence denied the defendant effective assistance of counsel. See People v. Pitts, 257 Ill. App. 3d 949, 951-52, 629 N.E.2d 770 (1994), where defense counsel did not request a recess to talk to the witness, decided it was too late to issue a subpoena, and did not request a continuance. In Commonwealth v. Brookins, 33 Mass. App. 626, 603 N.E.2d 916 (1992), a properly subpoenaed defense witness failed to appear the second day when his testimony carried over from one day to the next. Defense counsel did not request a continuance for the purpose of securing attendance of the witness. In Farmer v. State, 321 Ark. 283, 287-88, 902 S.W.2d 209 (1995), Farmer’s attorney failed to secure the appearance of the only witness available to corroborate the defendant’s self-defense claim, and he failed to request a continuance when the witness failed to appear. In Commonwealth v. Hillman, 465 Pa. 541, 351 A.2d 227 (1976), defense counsel learned at trial of certain discrepancies in a lineup, and in the face of new information defense counsel failed to request a recess or continuance to investigate the circumstances of the lineup.
The performance of Greene’s counsel is comparable to the deficient performances discussed in the above cases. A notice of alibi had been filed on behalf of Greene, and his trial attorney appropriately attempted to secure attendance of two alibi witnesses. Then during jury selection, Greene nullified all his attorney’s trial preparation by admitting that he had shot Flournoy and Womack. When confronted with his client’s admission, Greene’s attorney did not withdraw the notice of alibi and did not request a continuance. His inaction allowed the prosecuting attorney in opening statement to tell the jurors that defendant had filed a notice of alibi, which stated that defendant would produce evidence that he was at 10105 Belmont in Grandview, Missouri, at the time the shootings occurred. Defense counsel in his opening statement corrected the jurors’ expectation as to that evidence by telling them the evidence actually would be that Greene shot the victims rather than that he was nowhere near the scene, as previously claimed, but nothing counsel said could repair the injury to the defendant’s credibility. Learning before the evidence even began that the defendant had not been truthful, the jury in all likelihood was predisposed to disbelieve him so that it filtered Greene’s testimony through a fine mesh of skepticism.
In addition to detrimentally affecting defendant’s credibility with the jury, counsel’s inaction did not allow for appropriate preparation of the defense. At the time of opening statement, defense counsel told the jury of the hostile teenage relationship between Greene and Flournoy. Counsel told the jury that Greene “snapped” when Flournoy’s taunts dredged up the horrible memories. Counsel also told the jury that Greene “wanted to hurt [Flournoy], he wanted to get back for all the terrible atrocities that he had experienced as a young boy. Counsel’s message was mixed, at best. The jury was told in one breath that Greene did not intend to kill Flournoy and in the next breath that Greene had a motive for killing Flournoy. Then, testimony elicited from Greene reinforced the impression of both. This dichotomy between Greene’s having a reason to kill his old nemesis and killing him without intending to was bridged nicely by the testimony of a psychiatric expert witness during the post-conviction proceedings, but the jury did not hear that testimony.
At the remand hearing, Dr. John Wisner testified that Greene was given up by his birth mother, then adopted and later given up by his adoptive mother, and spent his childhood in institutional placements and eventually in foster-home placements. His records showed low-normal to borderline intelligence, coupled with broad and significant lags in functions controlled by the central nervous system. Dr. Wisner said that when Greene was tested as a 10-year-old, his motor function was at the level of a 6-year-old. Greene also had significant psychiatric problems that excluded him from regular schools and foster homes so that he was hospitalized and medicated.
Dr. Wisner offered the opinion, as a forensic psychiatrist and expert witness, that Flournoy’s taunting Greene with words like “bitch ass nigger” and saying, “He can suck this dick,” caused the defendant to flash back to his previous subjugated position relative to Flournoy. Dr. Wisner testified that he would expect the emotional impact of the vivid reminder of not being able to protect his own integrity to preclude Greene’s forming the intent to kill Flournoy. He regarded it as quite plausible that at that moment Greene lacked the capacity to form the intent to kill and just reacted, lashing out, to hurt someone or somehow protect himself. He concluded: “I think this is psychiatrically, this is almost a definition of what we’ve brought to the courts as things like crimes of passion, things like moments of overwhelming impulse, et cetera, all of which really adds up to . . . reduced ability to form a specific intent or appreciate outcomes and consequences.” With his expertise, Dr. Wisner offered an explanation that helped harmonize evidence that Greene simultaneously had a motive for killing Flournoy and killed him without intending to do so. The jury did not hear this explanation because there was no time for defense counsel to prepare an adequate defense.
With regard to Greene not having the intent to kill Flournoy, Greene’s attorney requested a jury instruction on diminished capacity based on State v. Jackson, 238 Kan. 793, 714 P.2d 1368, cert. denied 479 U.S. 821 (1986). In Jackson, the court recognized diminished capacity to commit a crime as a mental state not amounting to insanity. Insanity would negate criminal responsibility; diminished capacity would not negate criminal responsibility, but it would negate specific intent. 238 Kan. at 798.
Neither an insanity defense nor diminished capacity, as described in Jackson, are applicable to crimes committed after January 1, 1996. See K.S.A. 22-3220. The crimes at issue were com mitted on January 20,1997. The current statutory scheme replaced the term “insanity” with the phrase “mental disease or defect” and provides that it is a defense only if, as a result of his mental condition, a defendánt lacked the mental state required as an element of the offense charged. K.S.A. 22-3220. It requires a jury that has returned a not guilty verdict in a case involving substantial evidence of mental disease or defect in a defendant to answer a special question formulated to ascertain whether mental disease or defect was the sole reason for the verdict. A special verdict stating that defendant’s mental condition was the sole reason for the verdict triggers automatic hospitalization. K.S.A. 2000 Supp. 22-3428. If the defendant is found not guilty of the charged crime, the special question is answered in the affirmative, and if the defendant is also found guilty of a lesser included offense, the trial judge may order the defendant committed for mental examination before sentencing. K.S.A. 22-3222; K.S.A. 22-3429.
In the present case, the trial judge refused to instruct the jury on the Jackson concept of diminished capacity, not on the ground that it had been superseded but rather because he did not believe “there was any evidence presented that would support an instruction on diminished capacity.” The refusal to instruct is the subject of another question on this appeal. Relative to defense counsel’s failure to request time to adequately prepare the defense, we note that Dr. Wisner’s testimony would have supplied evidence of defendant’s mental state being altered in reaction to Flournoy’s taunting words.
“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction requires that the defendant show, first, that counsel’s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.” Chamberlain v. State, 236 Kan. 650, Syl. ¶ 3, 694 P.2d 468 (1985). The measure of prejudice “requires the defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 236 Kan. 650, Syl. ¶ 3. In the present case, the question boils down to whether defendant has shown that there is a reasonable probability that the combination of the jury’s not being predisposed to disbelieve defendant and Dr. Wisner’s expert testimony would have changed the outcome.
A jury that did not know that defendant had changed his story ought to give the evidence a properly unbiased hearing. Such a jury would hear the testimony of the psychiatrist to the effect that defendant shot Flournoy without intending to kill him. Dr. Wisner also would tell the jury that he would not have expected a person of defendant’s psychological capacity to assume control and leave the party because Flournoy showed up. On the other hand, the jury would hear evidence that creates doubts about Greene’s intentions. Some of that evidence was the State’s evidence, but much of it was not. There is Greene’s own testimony, “I was really trying to scare [Flournoy],” which might imply thinking rather than pure reaction. The word “scare” was used by defense counsel in the question to Greene, and, because the surrounding testimony gives the impression of a thoughtless reaction rather than a calculated response, perhaps the testimony should be regarded as aberrant and a reflection of defense counsel’s question rather than defendant’s state of mind. The jury undoubtedly would question the truthfulness of Greene’s testimony that shortly before the dice game he gave the gun that had been in his pocket to his friend, and the jury would take into account Womack’s testifying that Greene pulled the gun from his pocket. A jury that concluded Greene brought the gun to the dice game probably would be less likely to give credence to the theory that he did not intend to kill Flournoy.
Although Greene’s trial counsel did not create the difficult situation in which he found himself, he compounded the adverse effect it had on Greene by failing to inform the court of the situation and asking for a continuance. Greene’s lying to his counsel is a factor to be weighed along with all the other factors. A question of ineffective assistance of counsel is not an equitable doctrine that requires having clean hands. The effective assistance of counsel is constitutionally guaranteed. A trial in which the notice of alibi was not revealed to the jury and in which expert psychiatric testimony was offered on behalf of Greene would be a quite different trial from the one Greene received. Because the testimony of Dr. Wisner could exonerate defendant of intentional second-degree murder, we are convinced that there is a reasonable probability that the outcome would have been different. We hold that Greene has shown that trial counsel’s assistance was deficient, and that deficient performance deprived Greene of a fair trial.
In view of the foregoing, it is not necessary to consider the remaining issues raised by Greene. Reversed and remanded for a new trial.
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Per Curiam:
This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, James W. Coder. For a companion case, see Canaan v. Bartee, No. 86,406, filed this date. The Disciplinary Administrator alleged violations of Kansas Rules of Professional Conduct (KRPC) 1.3 (diligence) (2000 Kan. Ct. R. Annot. 310), 1.4(a) (communication) (2000 Kan. Ct. R. Annot. 320), 3.4(d) (failure to make reasonably diligent effort to comply with discovery) (2000 Kan. Ct. R. Annot. 389), and 8.4(d) (engaging in conduct prejudicial to administration of justice) (2000 Kan. Ct. R. Annot. 420). The panel’s findings and conclusions are supported by clear and convincing evidence. We adopt and impose the panel’s recommendation of suspension from the practice of law for 1 year, commencing from the date of this opinion.
Coder is an attorney admitted to the practice of law in Kansas in 1987. In his answer to the Deputy Disciplinary Administrator’s formal complaint, the respondent admitted nearly all of the allegations contained in the formal complaint. The Deputy Disciplinary Administrator and the respondent stipulated to the admission of exhibits. The panel heard the testimony of John Campell, Michael Bartee, D. Allen Bush, Kelly Jemigan, Mary Curtis, and the respondent.
After hearing the testimony presented and the arguments of the parties, and after reviewing the exhibits admitted into evidence, the panel made the following findings of fact and conclusions of law:
“1. James W. Coder (hereinafter, ‘the Respondent’) is an attorney at law. . . . His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Topeka, Kansas. . . . The Respondent was admitted to the practice of law in the state of Kansas on April 15, 1987 ....
“2. Marvin L. Canaan, a prisoner convicted of murder, aggravated robbery, and aggravated burglary, filed two lawsuits in the District Court of Johnson County, Kansas.
a. The first case, case number 97C16801, was filed by Mr. Canaan on December 22, 1997. The named defendants included: Michael Bartee, Mary Curtis, Steven Obermeier and'the State of Kansas. Mr. Canaan sought various forms of relief, including a claim for damages for the intentional infliction of emotional distress.
b. The second case, case number 98C102 was filed on January 5, 1998. The defendants in the second action included: Michael Bartee, Kelly Jemigan, D. Allen Bush, the Johnson County Public Defender’s Office, and Mary Curtis. In this case, Mr. Canaan made allegations of legal malpractice, fraud, breach of contract, and breach of warranty. Mr. Canaan sought damages in excess of $50,000.
“3. Each of the named defendants, except Mr. Jemigan, was served with a copy of the petitions. Thereafter, the defendants forwarded copies of the petitions to the Attorney General’s office. Mr. Bartee and Mr. Bush telephoned the Attorney General’s office, briefly spoke with Are Respondent, and learned that the Respondent would be representing them regarding Mr. Canaan’s law suits. The defendants did not have any additional contact with the Respondent or anyone from the Attorney General’s office during the years 1998 and 1999.
“4. The Respondent, in his capacity as an Assistant Attorney General for die state of Kansas, represented all defendants in both cases.
“5. Without input from any of the defendants (other than the brief contacts initiated by Mr. Bartee and Mr. Bush), the Respondent filed answers on behalf of all defendants. Additionally, the Respondent failed to object or assert as a defense to the cause of action, the lack of proper service on Mr. Jernigan.
“6. Thereafter, in January, 1998, Mr. Canaan served requests for production of documents on the defendants. When the documents were not forthcoming, Mr. Canaan filed a motion to compel discovery. In March, 1998, Mr. Canaan served interrogatories on the defendants.
“7. On August 5,1998, a case management conference was held by telephone before the Honorable Steve A. Leben. At that time, the Respondent informed the court that he had not received the discovery requests or that he was unable to find them. The court ordered Mr. Canaan to provide the Respondent with an additional copy of the discovery requests. The court scheduled a hearing for October 23, 1998, and ordered that the Respondent make the necessary arrangements for the telephone conference.
“8. On August 7,1998, Mr. Canaan resent the discovery requests to Respondent. After receiving no response to the requests, on October 8,1998, Mr. Canaan filed a second motion to compel discovery. This time, Mr. Canaan’s motion was accompanied by a request for sanctions. The Respondent failed to file a response to the motion to compel and the request for sanctions.
“9. The Respondent failed to set up the telephone conference for October 23, 1998, as ordered on August 5, 1998. The court subsequently tried to reach the Respondent several times and left messages for him but the Respondent failed to ever return the court’s telephone calls.
“10. On November 30,1998, Mr. Canaan filed a motion for default judgment. The Respondent failed to file a response to the motion for default judgment.
“11. On October 12, 1999, the court scheduled a case management conference for November 5,1999. Again, the court called upon the Respondent to make the necessary arrangements for the telephone conference hearing.
“12. The Respondent made the necessary arrangements, and the court held a case management telephone conference on November 5, 1999. At that time, the Respondent told the court that he did not recall receiving the requests for discovery, that the Respondent’s file regarding Mr. Canaan’s law suits had been misplaced, and that he had not been able to obtain a copy of the official court file. The court sustained Mr. Canaan’s motion for sanctions, ordered the defendants to make full and complete responses to the requests for discovery, and ordered the Respondent to provide a copy of the court order to each of the named defendants by December 5, 1999, so that they would be able to make informed decisions about the case, including whether they needed to hire separate counsel. The court also ordered another telephone conference hearing for January 7,2000.
“13. The Respondent filed for an extension of time to respond to the discovery requests. The Respondent’s request for an extension of time was granted and the Respondent was given until December 27, 1999, to provide responses to discovery. The Respondent failed to provide the requested responses to discovery. Additionally, the Respondent failed to make a second request for additional time to provide responses to discovery.
“14. In letters dated November 18, 1999, but not received until the middle of January, 2000, the defendants were advised that they needed to provide responses to the discovery requests by December 5,1999. Enclosed with the cover letter were copies of the discovery requests. The Respondent did not include a copy of the motion to compel discovery, a copy of the order compelling discovery, a copy of the motion for sanctions, or a copy of the motion for default judgment. Additionally, the Respondent did not even advise his clients of the existence of the motion to compel discovery, the order compelling discovery, the motion for sanctions, or the motion for default judgment.
“15. After receiving the Respondent’s letter dated November 18, 1999, Mr. Bartee and Mr. Bush telephoned the Respondent at the Attorney General’s office. When they were unable to reach the Respondent, Mr. Bartee and Mr. Bush left several messages. The Respondent failed to return the telephone calls.
“16. Because the Respondent fell ill just when the hearing scheduled for January 7, 2000, was to begin, the telephone conference hearing was continued to January 20, 2000. The hearing was held on January 20, 2000. At that time, the Respondent reported that the named defendants had not responded to any of the outstanding discovery requests. The Respondent also reported that he forwarded a copy of the court’s order granting Mr. Canaan’s request for sanctions to the defendants.
“17. The Respondent filed a brief with the court regarding tire applicable standards to consider when determining the appropriate sanction.
“18. On February 14, 2000, the court entered an order of default judgment, as to liability, against all defendants. The order found the attorney defendants liable for legal malpractice. On that same day, Mr. Campbell, Senior Deputy Attorney General and the Respondent’s supervisor, learned that default judgment had been entered against tire Respondent’s clients. Mr. Campbell met with the Respondent, and accepted the Respondent’s resignation.
“19. On November 20,2000, the court overruled the defendants’joint motion to set aside die default judgment. Additionally, die court denied the defendant’s request to wididraw admissions made by virtue of dieir lack of response, pursuant to K.S.A. 60-236.
“20. The named defendants took interlocutory appeals to the Kansas Court of Appeals. On its own motion, the Kansas Supreme Court transferred the case from die Kansas Court of Appeals to the Kansas Supreme Court. The cases are now pending before the Kansas Supreme Court.
“CONCLUSIONS OF LAW
“Based upon the above findings of fact, the Hearing Panel makes the following conclusions of law:
“1. In the Formal Complaint, the Deputy Disciplinary Administrator alleged that die Respondent violated KRPC 1.3, KRPC 1.4(a), and KRPC 3.4(d). Additionally, at the hearing on the Formal Complaint, the Deputy Disciplinary Administrator argued that the Respondent also violated KRPC 8.4(d). The law, regarding when violations not stated in the Formal Complaint can be found by the Hearing Panel, was thoroughly examined in State v. Caenen, 235 Kan. 451, 681 P.2d 639 (1984), as follows:
‘Supreme Court Rule 211(b) (232 Kan. clxvi), requires the formal complaint in a disciplinary proceeding to be sufficiently clear and specific to inform the respondent of the alleged misconduct.
‘The seminal decision regarding die applicability of the due process clause to lawyer disciplinary proceedings is found in In re Buffalo, 390 U.S. 544, reh. denied 391 U.S. 961 (1968). There the United States Supreme Court held that a lawyer charged with misconduct in lawyer disciplinary proceedings is entitled to procedural due process, and that due process includes fair notice of the charges sufficient to inform and provide a meaningful opportunity for explanation and defense.
‘Decisions subsequent to Ruffalo have refined the concept of due process as it applies to lawyer disciplinary hearings, and suggest that the notice to be provided be more in the nature of that provided in civil cases. The weight of authority appears to be that, unlike due process provided in criminal actions, there are no stringent or technical requirements in setting forth allegations or descriptions of alleged offenses. . . . Due process requires only that the charges must be sufficiently clear and specific to inform the attorney of the misconduct charged, but the state is not required to plead specific rules, since it is the factual allegations against which the attorney must defend. . . . However, if specific rules are pled, the state is thereafter limited to such specific offenses. . . .
‘Subsequent to the Ruffalo decision, the due process requirements in lawyer disciplinary proceedings have been given exhaustive treatment by this court. In State v. Turner, 217 Kan. 574, 538 P.2d 966 (1975), 87 A.L.R.3d 337, the court summarized prior Kansas and federal precedent on the question, including Ruffalo, and held in accordance with established precedent that the state need not set forth in its complaint the specific disciplinary rules allegedly violated . . . , nor is it required to plead specific allegations of misconduct. . . . What is required was simply stated therein:
“We must conclude that where the facts in connection with the charge are clearly set out in the complaint a respondent is put on notice as to what ethical violations may arise therefrom. . . .
“ ‘It is not incumbent on the board to notify the respondent of charges of specific acts of misconduct as long as proper notice is given of the basic factual situation out of which the charges might result.’ ” 235 Kan. at 458-59 (citations omitted).’
“Thus, in this case, the Hearing Panel may find a violation of KRPC 8.4(d) only if the Formal Complaint alleges facts that would support such a finding. In this case, the Formal Complaint contains sufficient facts to support the finding that the Respondent violated KRPC 8.4(d). Accordingly, the Hearing Panel may properly consider whether the Respondent violated KRPC 8.4(d).
“2. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. Because the Respondent failed to act with reasonable diligence and promptness in representing the defendants, the Respondent violated KRPC 1.3. As a result of the Respondent’s lack of diligence, judgment was entered against the defendants.
“3. KRPC 1.4(a) provides:
‘A lawyer shall keep a client reasonably informed about the status of a matter and prompdy comply with reasonable requests for information.’
Id. The Respondent failed to contact the defendants in preparation of the answers, the Respondent failed to timely notify the defendants of the discovery requests even when specifically ordered to do so by the court, and the Respondent failed to advise his clients of the existence of the motion to compel discovery, the order compelling discovery, the motion for sanctions, or the motion for default judg ment. Because the Respondent failed to even attempt to keep the defendants informed about the status of their cases, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“4. Lawyers are required to be fair to the opposing party and counsel. See KRPC 3.4(d). Specifically,
‘[a] lawyer shall not ... in pretrial procedure, . . . fail to make [a] reasonably diligent effort to comply with a legally proper discovery request by an opposing party.’
Id. In this case, the Respondent failed to make any effort to provide the requested documents and answers to the interrogatories even when so ordered by the court. As such, the Hearing Panel concludes that the Respondent violated KRPC 3.4(d).
“5. KRPC 8.4(d) provides that ‘[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’Id. The Respondent violated KRPC 8.4(d) when he failed to object to or assert as a defense tire lack of proper service on Mr. Jernigan, when he failed to appear in court, when he failed to comply with the orders of the court, and when he failed to provide requested discovery. The Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
“RECOMMENDATIONS
“In making this recommendations for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty violated. The Respondent violated his duty to the legal system to assist in the administration of justice. Additionally, the Respondent violated his duty to his clients to provide diligent representation and appropriate communication.
“Mental State. The Respondent knowingly violated his duties.
“Injury. Because of the Respondent’s misconduct, Mr. Canaan’s lawsuits have been delayed for a significant amount of time. As such, Mr. Canaan suffered actual injury as the result of the Respondent’s misconduct. Furthermore, the defendants named in Mr. Canaan’s lawsuits suffered actual injury when judgment, as to liability, was entered against them. The entry of judgment against them caused immeasurable stress and aggravation to the defendants as well as potential damage to their professional reputations, as the attorney defendants were found hable for malpractice. The Respondent’s misconduct also forced the defendants to retain private counsel to provide representation in the ongoing proceedings. According to Mr. Campbell, tíre state of Kansas will be paying the attorney fees incurred by private counsel. As such, the named defendants and the state of Kansas suffered actual injury as a result of the Respondent’s misconduct.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Pattern of Misconduct. The Respondent repeatedly failed to follow orders of the court. The Respondent failed to communicate with his clients over a period of two years. The Respondent failed to respond to requests for discovery on numerous occasions. Accordingly, the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.4(a), KRPC 3.4(d), and KRPC 8.4(d). As such, the Respondent engaged in multiple offenses.
“Vulnerability of Victims. At the times the misconduct in this case occurred, the Respondent had been handling inmate lawsuits for the Attorney General’s office for between two and four years. As a result, the Respondent was aware that inmate cases are often dismissed prior to discovery, that defendants generally do not actively participate in the defense of the actions, and that findings of liability for legal malpractice on the part of attorney defendants are rare. In both of Mr. Canaan’s cases, the defendants were not actively involved in the preparation of the answers. The Respondent filed answers on behalf of the defendants, without any input from the defendants.
“Mr. Bartee had previously been sued by inmates in his capacity as a public defender. On each of those occasions, the cases filed against Mr. Bartee were dismissed prior to discovery. Mr. Bartee had no reason to believe that this case would be any different. Mr. Bartee trusted that this case had taken the same course as the previous inmate law suits in which he was involved.
“Mr. Bush had not been sued by an inmate prior to Mr. Canaan’s suits. However, Mr. Bush discussed this case with co-workers. He was assured by his coworkers that the inmate law suits were typically dismissed without any participation by the named defendants. Mr. Bush assumed that the Respondent had taken care of the case, and that the matter had been dismissed.
“Finally, Ms. Curtis, testified that when working as a public defender for the state of Missouri, she had been sued on two or three occasions by inmates. On each of those occasions, Ms. Curtis provided the pleadings to the attorneys representing her, and then heard nothing else. With regard to Mr. Canaan’s law suits, Ms. Curtis relied on the Respondent, and assumed that he had resolved the cases in her favor.
“The Respondent knew or reasonably should have known that based upon the typical nature of inmate law suits, that the defendants would not actively follow these cases, and would therefore be vulnerable to the type of misconduct committed herein. Certainly, the Respondent took no action that would lead the named defendants to believe that Mr. Canaan’s law suits would require additional attention. The Hearing Panel concludes that the victims were vulnerable because of the nature of the law suits.
“Substantial Experience in the Practice of Law. The Respondent was admitted to the practice of law in the state of Kansas on April 15, 1987. At the time the misconduct occurred, the Respondent had been practicing law for a period of between eleven and thirteen years.
“Failure to Rectify the Consequences of His Actions. The Respondent has made no attempt to rectify the situation created by his misconduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Absence of Dishonest or Selfish Motive. There is no evidence that the Respondent’s misconduct was motivated by dishonesty or selfishness.
“Previous Good Character and Reputation. The letters submitted by the Respondent from a friend and a current supervisor as well as the testimony from Mr. Campbell indicate that die Respondent enjoys a good reputation.
Arguing that the facts in In re Druten, 267 Kan. 790, 982 P.2d 978 (1999), are similar to the facts in this case, the Respondent recommended that, like Druten, he should be publicly censured. However, a ‘[cjomparison of past sanctions imposed in disciplinary cases is of little guidance. Each case is evaluated individually in light of its particular facts and circumstances and in light of protecting the public.’ In rejones, 252 Kan. 236, 239, 843 P.2d 709 (1992).
Additionally, Druten is factually dissimilar to die case at hand. In Druten, the Respondent was retained to provide representation to his client in various collection matters. Before obtaining the files, the statute of limitations had expired as to some of the matters. Druten’s client told the Respondent that he would provide false testimony to avoid statute of limitations problems. Then, Druten misrepresented to his client the status of die cases, falsely indicating that some of the cases had been filed and were scheduled for setdement conferences. Because his firm carried professional liability insurance, Druten’s client received a settlement of approximately $100,000. Finally, Druten self-reported the violation to the Office of the Disciplinary Administrator. Id. at 979-80.
The factual differences are diree-fold: The client in the Druten case had unclean hands; the clients in this case did nothing improper. Because Druten had professional liability insurance, his client was compensated for any injury that Druten’s misconduct caused. In this case, the Respondent took no action even to attempt to rectify the situation that his misconduct caused. Finally, Druten self-reported the violation to the Office of the Disciplinary Administrator. The Respondent’s misconduct, in this case, was reported by Mr. Campbell, Senior Deputy Attorney General.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following standards:
‘Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference with a legal proceeding.’
Standard 6.22. The Respondent knowingly violated Judge Leben’s order and interfered with the progression of Mr. Canaan’s law suits.
‘Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.’
Standard 4.42. The Respondent knowingly and repeatedly failed to obtain responses to the requests for discovery and caused injury to his clients.
“Based upon the above findings of fact, conclusions of law, and standards, the Hearing Panel unanimously recommends that Respondent be suspended from the practice of law for a period of one year. Additionally, the Hearing Panel recommends that the suspension be effective as of the date of the hearing held on this matter, May 15, 2001. Finally, die Hearing Panel recommends that the Respondent be required to undergo a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219. At the reinstatement hearing, the Respondent should be required to establish that he has received the appropriate professional help to enable him to prevent a repeat of the misconduct present in this case.”
A finding of attorney misconduct requires proof “by clear and convincing evidence.” Supreme Court Rule 211(f) (2000 Kan. Ct. R. Annot. 250). The panel’s findings of fact are supported by clear and convincing evidence and, with the conclusions of law, are adopted as the findings of this court.
It Is Therefore Ordered that James W. Coder is hereby suspended from the practice of law in the State of Kansas for a period of 1 year from the date of this opinion.
It Is Further Ordered that the respondent shall comply with Supreme Court Rules 218 (2000 Kan. Ct. R. Annot. 266) and 219 (2000 Kan. Ct. R. Annot. 274).
It Is Further Ordered that the costs of the proceeding be assessed to the respondent and that this opinion be published in the official Kansas Reports. | [
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|
The opinion of the court was delivered by
Larson, J.:
Virgil Bradford appeals his conviction of capital murder, K.S.A. 21-3439(a)(6), for the intentional and premeditated killing of Kyle and Chrystine Moore as part of the same act or transaction, or in two or more acts or transactions connected together, or constituting parts of a common scheme or course of conduct; aggravated robbery, K.S.A. 21-3427, aggravated burglary, K.S.A. 21-3716; and two counts of theft, K.S.A. 21-3701. He was sentenced to life imprisonment with no chance of parole for 40 years (hard 40) on the capital murder conviction, 380 months on the aggravated robbery conviction, 68 months on the aggravated burglary conviction, 14 months on the first felony theft conviction, and 14 months on the second felony theft conviction, with each sentence to run consecutive to the other. Bradford appeals directly to our court pursuant to K.S.A. 22-3601(b)(l).
This is a companion case to State v. Verge, 272 Kan. 501, 34 P.3d 449 (2001).
Virgil Bradford and Robert Verge were charged with the crimes above-stated for which both were convicted. At Bradford’s trial, he admitted to being present during the gruesome killing of both victims; however, he contended that Verge was the murderer. At Verge’s separate trial, Verge offered a similar defense, claiming that Bradford was the murderer.
Kyle and Chiystine Moore were found dead in their residence on Solomon Road north of Solomon, Kansas, on the evening of February 17, 1997. Several officers investigated the crime scene. Blood stains were found in the living room, dining room, bathroom, and bedroom. The two victims were found dead in their bedroom. The bedroom was in a state of disarray, with blood stains on all the walls, the ceiling, and pieces of furniture. The victims’ two vehicles were stolen.
The autopsy revealed that Kyle Moore died from blunt force injuries, sharp force injuries, and gunshot wounds; he was beaten, stabbed, and shot, in that sequence. He had a total of 102 wounds on his body, some of which were defensive in nature. He was shot four to five times in the head at close range. The pattern of the shots indicated that he was not moving at the time he was shot, but he was still alive. There were a total of 10 gunshot wounds to his body.
Chrystine Moore died from multiple gunshot wounds in association with stab wounds. She was hit with a hard instrument in the head and stabbed in the chest. She was shot six or seven times. She was alive until the time she was shot in the head.
A knife wrapped in tissue paper, two empty handgun containers, an empty box of .22 caliber cartridges, several shell casings and slugs (none of which tested consistent with a .38 caliber revolver), and a pair of blood-stained sweat pants were found at the Moore residence. Bradford’s blood was found on the sweat pants, the bathroom rug and mirror, the living room window, and a towel found under the window. Possible contributors of blood on a muddy sock located in one of the stolen vehicles were Bradford and the two victims.
Kyle Moore’s State-issued vehicle was found in Kansas City, Missouri, parked outside of an apartment building. In the course of the investigation, the authorities became acquainted with one of the apartment residents, Charles Bostic.
Bostic testified for the State that one morning in February 1997, Bradford and Verge came to his apartment and made comments about killing police officers and showed him their guns when he did not take them seriously.
Testifying in his own defense, Bradford stated that he passed out in a car while Verge was driving, and the vehicle eventually ended up stuck in the mud in an unknown place. They walked to the Moore’s home, and Verge was carrying a flashlight. Bradford stated that after unsuccessfully trying to get the attention of the occupants, he concluded that no one was home. He admitted noticing beforehand that two cars were parked outside and an outside light was on. Verge handed Bradford an empty .38 caliber revolver. Bradford then broke into the house with the intent to steal keys to one of the vehicles. He noticed a light was on after he broke in, and he immediately headed toward the light. After entering the bedroom, he was attacked by Kyle Moore, and he hit Kyle several times on the head with the revolver. He claimed that while he was fighting with Kyle, Verge shot Chrystine. After she was shot, Kyle tried to protect her and was also shot by Verge. Bradford was unable to account for the several stabbing wounds present on both victims.
Bradford was convicted of capital murder for the intentional and premeditated murders of Kyle and Chiystine Moore, but the jury declined to assess the death penalty. He was also convicted of aggravated robbery, aggravated burglary, and two counts of theft. We consider the issues he raises on appeal.
Sufficiency of evidence to support conviction of capital murder
Bradford first contends there was insufficient evidence showing that he premeditated the murders. He argues (1) the actions preceding the murder do not show premeditation, (2) the fact two people were killed does not show premeditation, (3) the extent of the injuries does not show premeditation, (4) the use of multiple weapons does not show premeditation, and (5) there was no evidence that he aided and abetted the murders. Each subargument is made with the incorrect presumption that Bradford’s own testimony is entirely truthful and binding upon this court.
When reviewing sufficiency of the evidence, we must review all the evidence, viewed in a light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Rodriguez, 269 Kan. 633, 634, 8 P.3d 712 (2000).
We have recently restated the standard of review for premeditation:
“Premeditation is the process of thinking about a proposed killing before engaging in the homicidal conduct. State v. Rice, 261 Kan. 567, 587, 932 P.2d 981 (1997). Premeditation and deliberation may be inferred from the established circumstances of the case, provided the inference is a reasonable one. In such a case, the jury has the right to make the inference. State v. Buie, 223 Kan. 594, 597, 575 P.2d 555 (1978).” State v. Alvidrez, 271 Kan. 143, 148, 20 P.3d 1264 (2001).
This court has also set forth factors that may be considered in determining whether premeditation exists:
“We held in [State v.] Moncla[, 262 Kan. 58, 73, 936 P.2d 727 (1997)] that while the element of premeditation is not inferred from use of a deadly weapon alone, an inference of premeditation may be supported where additional circumstances are shown, including lack of provocation, conduct before and after the killing, or the striking of a lethal blow after the deceased was rendered helpless.” State v. Henry, 263 Kan. 118, 130, 947 P.2d 1020 (1997).
In the present case, 25 wounds were inflicted on Chrystine Moore and 102 wounds on Kyle Moore. Competent testimony of the forensic pathologist tended to show that the victims were first beaten, then cut, and then finally shot several times each in the body and then several times in the head. The evidence also showed Kyle Moore was not moving when he was shot in the head, and that death did not occur until he was shot in the head. Chrystine Moore was also alive at the time she was shot in the head, and but for the gunshot wounds, she might have survived. The gun used to kill the Moores was their own, and an empty box of .22 caliber cartridges was found on the floor. This evidence viewed in the light most favorable to the prosecution was sufficient to support the jury’s finding of premeditation to uphold the conviction of capital murder.
Furthermore, although Bradford claims that he severely beat Kyle Moore because Kyle first attacked him, the jury could have inferred from the evidence that Bradford and Verge broke into the house with full knowledge that it was occupied. According to Bradford’s own testimony, two cars were behind the house, a light was on outside, and one was on inside. They entered the house with a .38 caliber revolver, although Bradford claims that he was told it was empty. The Moores were killed in the bedroom of their own home, and there were no wounds on their bodies that suggested that they made any aggressive acts. Hence, there was additional evidence to support a reasonable inference that the killings were done without provocation.
A total review of the facts reveals an abundance of evidence from which the juiy could infer premeditation. Bradford’s argument, which seems to presume that unless he directly admits to premeditating the killings he cannot be convicted thereof, is totally without merit.
Sufficiency of aiding and abetting capital murder
Bradford next challenges the evidence as insufficient to support a guilty conviction for capital murder under the theory of aiding and abetting.
In State v. Wakefield, 267 Kan. 116, 977 P.2d 941 (1999), we recited the following standard of review for sufficiency of the evidence in the context of aiding and abetting:
“It is well established in Kansas law that tire mere presence of an accused at die time and place of the crime alleged is not sufficient to make die accused guilty of die crime, but if from the facts and circumstances surrounding die defendant’s presence at die time and from the defendant’s conduct it appears that die defendant’s presence did in fact encourage someone else to commit the criminal act, guilt may be inferred. State v. Smolin, 221 Kan. 149, 153, 557 P.2d 1241 (1976). In the absence of anything in a person’s conduct showing a design to encourage, incite, aid, abet, or assist in the crime, die trier of the facts may consider failure of such person to oppose tile commission of the crime in connection with other circumstances and conclude therefrom that die person assented to the commission of the crime, lent his or her countenance and approval diereto, and diereby aided and abetted the commission of the crime. 221 Kan. at 153.” 267 Kan. at 121.
We noted in Wakefield that the defendant knew his accomplice was ascending the stairs of the home to kill the victims, and rather than attempting to stop him, the defendant continued taking items out of the victims’ home. Such action was held sufficient. 267 Kan. at 123.
Bradford argues that because he testified that Verge was the trigger man and he did not help or participate with Verge in the murders, there was insufficient evidence for the jury to conclude he aided and abetted the premeditated murders. Bradford’s testimony contained several inconsistencies, but issues of credibility are within the province of the jury and questions of credibility shall be resolved in favor of the State on appeal. State v. McCray, 267 Kan. 339, 343, 979 P.2d 134 (1999). A plethora of evidence existed from which a rational jury could have concluded that Bradford aided and abetted these murders.
Batson challenge
Bradford argues the State’s peremptory challenge, and the court’s refusal to find the challenge to be improper, was in violation of Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991), and Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986).
We recited our standard of review of Batson challenges in State v. Pink, 270 Kan. 728, 731-32, 20 P.3d 31 (2001):
“A three-step analysis applies to a Batson challenge. The defendant must first make a prima facie showing that the prosecution has used a peremptory challenge on the basis of race. Next, if a showing is made, the burden shifts to the prosecution to articulate a race-neutral reason for striking a juror, and, finally, the court then decides whether the defendant has carried the burden of establishing purposeful discrimination. See State v. Edwards, 264 Kan. 177, 192, 955 P.2d 1276 (1998).
“In State v. Alexander, 268 Kan. 610, 619, 1 P.3d 875 (2000), we stated: ‘Because the trial judge’s findings in the context under consideration turn on evaluation of the credibility of the prosecutor, a reviewing court should give those findings great deference. State v. Walston, 256 Kan. 372, 378, 886 P.2d 349 (1994) (referring to Batson).’ In Walston, we further stated:
‘ “In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge . . . [the evaluation of which] lies ‘peculiarly within a trial judge’s province.’ [Citations omitted.]” ’ 256 Kan. at 379.
“Judicial discretion is abused only when exercised in an arbitrary, fanciful, or unreasonable manner. State v. Gardner, 264 Kan. 95, 103-04, 955 P.2d 1199 (1998).”
Venireperson T.B. was stricken by the State’s peremptory challenge. T.B. is Hispanic and was the only minority individual remaining on the venirepanel at the time she was stricken.
When responding to Bradford’s Batson challenge, the State argued: (1) that T.B. had answered on the jury questionnaire that she was neither in favor of nor opposed to the death penalty, although the State admitted that other potential jurors who had that quality may not have been stricken, (2) that T.B. appeared as though she did not want to be there, (3) that T.B. was a single parent and was concerned about being there, and (4) that the prosecutor had inadvertently insulted T.B. Bradford responded that the above listed reasons were insufficient to establish a race-neutral reason for striking T.B.
Bradford complains that the record does not support the prosecution’s claim that T.B. was a mother and did not want to be at the proceedings. Bradford is mistaken. The prosecutor stated to the court that T.B. was a single parent and “it appeared that she did not want to be [there].” As we have noted, there will seldom be much evidence bearing on the issue of a Batson challenge, and the best evidence often will be the demeanor of the attorney who exercises the challenge, with the evaluation of that challenge peculiarly within a trial judge’s province. See Pink, 270 Kan. at 731-32.
Finally, Bradford’s contention that there is no support in the record for the State’s argument that T.B. was inadvertently insulted by one of the prosecutor’s questions is without merit. During voir dire, the prosecutor made the following statement during the questioning of one of the jurors:
“When a person has heard or read something about the case, and I think probably everybody has in this case, and I’m not sure we want jurors who knew nothing about tire case, had never heard about the case, because that means they, perhaps, aren’t very well informed, but . . . [we ask you] to disregard what you’ve heard.”
A short time later, he questioned T.B. as to whether she had read about the case:
“PROSECUTOR: [T.B.], did you read or hear about the case?
“[T.B.]: No, I’m one of those not well informed people. I have—
“PROSECUTOR: Okay. This wasn’t in this county, so there are certainly reasons why you may not have heard about it.”
T.B. derogatorily characterized herself in rewording the prosecutor’s earlier remarks, and it would not be unreasonable to conclude that her response was a reflection of her ill-feelings toward the prosecution. The record offers tangible support for counsel’s assertions. Accordingly, we find the trial court did not abuse its discretion in upholding the State’s peremptory challenge to Batson scrutiny.
Admission of statements of a nontestifying codefendant
Bradford next argues that his constitutional right to confrontation was violated when Charles Bostic, one of the State’s witnesses, was permitted to recount statements of Robert Verge, the unavailable codefendant.
Prior to trial, Bradford filed a motion in limine to prevent Bostic from testifying to any statements made by Verge. In the motion, he denied being present at the time Verge made statements to Bostic. After hearing the motion, the court found that Bradford was present at the time the inculpatory statements were made, and by his silence and affirmative conduct the statements were adoptive admissions. The court denied the motion.
Bostic testified at trial. He stated that Bradford and Verge came to his apartment on February 17, 1997. They were both muddy and had specks of blood on them. He testified that Verge was talking about something but Bradford “hushed him up.” On Verge’s request, the three went to a different room and continued the conversation. Bostic then recounted the colloquy as it continued in the next room:
“Well, Robert had went on talking about they was supposed to kill some police, some police officers, and I was looking at him like, you know, whatever. So I’m looking at him, and he’s like — he said — he told Virgil [Bradford] to show me, and Virgil lifted his shirt up and he had three guns going around his waist. So he pulled fire guns out and laid them on the bed.”
The record reflects, and neither side disputes on appeal, the defense lodged a timely objection to the above statement on hearsay grounds.
Bradford first points to decisions that the admission of confessions made by nontestifying codefendants which implicate the accused is a violation of the accused’s Sixth Amendment right to confrontation. Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968), and State v. Butler, 257 Kan. 1110, 1114, 916 P.2d 1 (1996). Bradford also contends that compliance with the hearsay exception of adoptive admissions under K.S.A. 2000 Supp. 60-460(h)(2) does not solve the Confrontation Clause problem. He cites Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), where the Supreme Court held the Confrontation Clause requires that a declarant be found constitutionally unavailable and the statements of such declarant bear sufficient indicia of reliability. Reliability can be inferred where the hearsay falls into a firmly rooted exception, and in other cases there must be a showing of “particularized guarantees of trustworthiness.” Roberts, 448 U.S. at 66.
Bradford argues on appeal that his act of “shushing” Verge in front of Bostic cannot be affirmatively interpreted as an adoption of Verge’s statements about the killing. He is correct. However, he fails to make any argument that the action of lifting his shirt to show Bostic the guns may be subject to dual interpretation. When Bostic showed disbelief as to Verge’s story about killing some police officers, Verge told Bradford to “show him.” Bradford lifted his shirt, revealing three handguns, then laid the three guns on the bed. No credible argument could be made that Bradford’s actions were not an adoptive admission to Verge’s earlier admission of the killings.
Neither the State nor Bradford rely on State v. Buckner, 223 Kan. 138, 145, 574 P.2d 918 (1977), but a review of that holding shows it to be on point in the present case. In Buckner, we upheld the finding of an adoptive admission pursuant to 60-460(h)(2), where statements impheating a group of coconspirators, of whom defendant was one although he was not mentioned specifically by name, were made in defendant’s presence to which the defendant responded only with silence. We found that the Confrontation Clause had not been violated because an adoptive admission is in essence the accused’s own statement and does not depend on the credibility of a third party. 223 Kan. at 145 (citing State v. Greer, 202 Kan. 212, 214-15, 447 P.2d 837 [1968]).
This principle was again affirmed by this court in State v. Sullivan & Sullivan, 224 Kan. 110, 115-19, 578 P.2d 1108 (1978). In Sullivan, while dismissing the State’s alternative effort to construe a statement as an adoptive admission, we expressed that adopted admissions do not fall within the purview of Bruton because adoption causes the statement to become that of the accused. 224 Kan. at 119.
As previously discussed, Bradford’s actions evidencing his adoption far exceed mere silence. The trial court did not err in finding Bradford had adopted Verge’s admission.
Assuming his argument against his actions being an adoptive admission fails, Bradford’s fall-back position is that adoptive admissions must still meet the test of particularized guarantees of trustworthiness set forth in Roberts because K.S.A. 2000 Supp. 60-460(h) is not a firmly rooted hearsay exception. Essentially, he is contending that Roberts overrules, at least by implication, our progeny of case law, including Buckner and Sullivan, which place no such requirement on adopted admissions. This argument also fails.
When the Supreme Court decided Roberts, the Federal Rules of Evidence did not even classify an adopted admission as hearsay, but rather excluded it from the definition of hearsay. Fed. R. Evid. 801(d)(2)(b). Certainly, the Court did not intend to impose more stringent restrictions on evidence in state courts than in federal courts. Several federal circuit courts agree that adoptive admissions are not required to meet the additional requirements of trustworthiness set forth in Roberts because they are either a firmly rooted exception or not included in the definition of hearsay. See Berrisford v. Wood, 826 F.2d 747, 751 (8th Cir. 1987), cert. denied 484 U.S. 1016 (1988); United States v. Monks, 774 F.2d 945, 951-52 (9th Cir. 1985); U.S. v. Beckham, 968 F.2d 47, 51 (D.C. Cir. 1992); see also Nueman v. Rivers, 125 F.3d 315, 320 (6th Cir. 1997) (citing the advisory notes to Fed. R. Evid. 801 [d] [2], which state no guarantee of trustworthiness is required because admissions are not hearsay).
We have recently discussed this exact question in State v. Betts, 272 Kan. 369, 33 P.3d 575 (2001), where we specifically concluded that “[t]he hearsay exception under K.S.A. 2000 Supp. 60-460(h)(2) for adoptive admissions, including admissions by silence, is a firmly hearsay exception.” Syl. ¶ 9. The testimony was properly admitted under K.S.A. 2000 Supp. 60-460(h)(2).
Admission of multiple photographs of crime scene and autopsies
Bradford asserts that the trial court abused its discretion and committed reversible error by admitting an excessive number of gruesome photographs which merely inflamed the jury and lacked evidentiary value. This court reviews the admission of evidence under an abuse of discretion standard. State v. Bornholdt, 261 Kan. 644, 667, 932 P.2d 964 (1997).
In support of his argument, Bradford directs us to four of our prior decisions: State v. Harris, 259 Kan. 689, 915 P.2d 758 (1996); State v. Walker, 252 Kan. 279, 845 P.2d 1 (1993); State v. Prouse, 244 Kan. 292, 767 P.2d 1308 (1989); and State v. Boyd, 216 Kan. 373, 532 P.2d 1064 (1975).
The facts presented to us are not similar to those in Boyd, where an unnecessary photograph of the victim during a highly invasive autopsy procedure was introduced. The remaining cases cited by Bradford all upheld the admission of the challenged photographs. Most instructive is Walker.
In Walker, the defendant challenged the introduction of 18 photographs and transparencies depicting the victim’s body, including 1 of die hyoid bone removed and 1 photograph of the victim in life. The hyoid bone was the only picture showing invasive autopsy. All the photos and transparencies, with the exception of the photo of the victim in life, depicted the victim’s various wounds received during the attack upon her. We first opined: “Demonstrative photographs are not inadmissible merely because they are gruesome and shocking where they are true reproductions of relevant physical facts and material conditions at issue,” and then held that each picture was relative to proving an element of the crime. 252 Kan. at 287. As per defendant’s argument that the transparencies were improperly introduced because they made the victim appear “larger than fife,” we noted that the transparencies were used to enable all the jury to see simultaneously and follow the pathologist’s testimony. No abuse of discretion was found. 252 Kan. at 287.
Bradford appeals the introduction of 37 photographs of various parts of the bodies of Kyle and Chiystine Moore; each photograph was 13 by 21 inches and mounted on foam board backing. Each picture relates to a portion of the State pathologist’s testimony and displays particular wounds, blood stain patterns, the original condition of the bodies prior to autopsy, or a combination of these. None of the pictures are excessively gruesome, nor do they depict any unnecessarily intrusive autopsy procedures. The enlarged pho tographs allowed the State’s expert to explain them to the entire jury panel simultaneously.
As discussed earlier, premeditation was a contested issue in Bradford’s case. The number and manner of wounds, as well as the various weaponry used to inflict them, was relevant circumstantial evidence on the issue of premeditation. Therefore, the exhibits did not lack evidentiary value. Furthermore, the gruesome nature of the photographs was merely a reflection of the gruesome nature of the murders, and not a result of the autopsy procedures. In addition, the size of the pictures does not raise an issue, as we have previously upheld the use of an overhead projector to display exhibits when used for the purpose of aiding the expert’s testimony. Walker, 252 Kan. at 287. The trial court did not abuse its discretion in admitting the exhibits.
PIK instruction on voluntary intoxication
Bradford contends the trial court erred in giving PIK Crim. 3d 54.12-A-1 relating to voluntary intoxication, rather than instructing according to the statute, K.S.A. 21-3208. He did not object to this instruction below but contends the instruction as given was clearly erroneous. We review such a contention as follows: “ ‘An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict.’ [Citation omitted.]” State v. Kelly, 262 Kan. 755, 764, 942 P.2d 579 (1997).
Bradford was given a voluntary intoxication instruction for his specific intent crimes of capital murder, lesser included offenses of first-degree murder or felony murder, and aggravated burglary. The principal language to which he now claims as error on appeal is as follows: “Voluntary intoxication may be a defense to the charge of [specific intent crimes], where the evidence indicates that such intoxication impaired a defendant’s mental faculties to the extent that he was incapable of forming the necessary [premeditation or intent to kill . . . (or) intent to commit the underlying felonies].” As previously stated, this follows the PIK wording and, absent facts warranting modification, should be followed. See State v. Diaz, 263 Kan. 331, 335, 949 P.2d 1093 (1997).
Bradford has failed to demonstrate any need to modify the PIK instruction. He claims in his brief that the instruction should have been formulated in a manner that made intoxication one factor out of several for the jury to consider when determining if he was capable of the requisite intent. Other factors he asserts should have been included are “his low intelligence and other aspects of his character and background.” Bradford fails to make any designation in the record to support the existence of these additional factors. “The defendant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, an appellate court presumes that the action of the trial court was proper. [Citation omitted.]” State v. Moncla, 262 Kan. 58, 68, 936 P.2d 727 (1997).
Bradford also argues that the PIK instruction does not accurately reflect the statute and that the PIK instruction and current status of Kansas case law violate due process by depriving him and other defendants of their full statutory rights. K.S.A. 21-3208 reads:
“(1) The fact that a person charged with a crime was in an intoxicated condition at the time the alleged crime was committed is a defense only if such condition was involuntarily produced and rendered such person substantially incapable of knowing or understanding tire wrongfulness of his conduct and of conforming his conduct to the requirements of law.
“(2) An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.”
Bradford contends that under this statute, voluntary intoxication for specific intent crimes should not be an “all or nothing” defense; rather, it should be a factor taken into consideration when determining intent regardless of whether the intoxication alone prevented the individual from forming the requisite intent.
Bradford acknowledges that this argument runs contrary to present case law, but he complains that under Ross v. Oklahoma, 487 U.S. 81, 101 L. Ed. 2d 80, 108 S. Ct. 2273 (1988), this court cannot interpret a statute to impair a right created by the legislature. Con trary to Bradford’s contention, our interpretation of K.S.A.21-3208 is not an act of judicial legislation.
At issue in this case is the phrase “the fact of intoxication may be taken into consideration in determining such intent or state of mind.” K.S.A. 21-3208(2). The legislature did not expressly specify how voluntary intoxication was to be taken into consideration, nor did it mandate consideration.
Construing the statute as a whole, in pari materia, a review of K.S.A. 21-3208(1) is enlightening. There, the legislature required that two conditions be met prior to involuntary intoxication acting as a defense to a crime. The intoxication (1) must be involuntary and (2) it must render the individual “substantially incapable of [a] knowing or understanding the wrongfulness of his conduct and [b] of conforming his conduct to the requirements of law.” K.S.A. 21-3208(1).
Reading the statute as a whole, the voluntary intoxication defense clearly does not require the intoxication to be involuntary, but the clearest test to determine when the fact of voluntary intoxication may be taken into consideration is drawn from the second requirement enumerated in the involuntary intoxication defense. If the voluntary intoxication renders an individual “substantially incapable” of forming the requisite specific intent or state of mind for die crime in question, then it shall be submitted as a defense instruction to the finder of fact. This is the test now embodied in PIK Crim. 3d 54.12-A-1, as well as our relevant case law.
For almost 2 decades, since the first reported decision on K.S.A. 21-3208, we have interpreted the voluntary intoxication defense as requiring the defendant to show he or she was unable to form the requisite intent due to the intoxication. See State v. Seely, 212 Kan. 195, 203, 510 P.2d 115 (1973)(this court approved the PIK instruction and stated: “Thus, voluntary intoxication such as afflicted appellant would be a defense if it rendered him incapable of forming a ‘particular intent’ which formed a necessary element of the crime charged.”). No decision has required or permitted a voluntary intoxication defense instruction when a defendant flippantly claimed to be affected by a small level of intoxicating substance. In fact, in the more recent case of State v. Gonzalez, 253 Kan. 22, 25, 853 P.2d 644 (1993), evidence that the defendant consumed “most of two 12-packs of beer” in a 4-hour period was insufficient, in light of other facts showing that the defendant did in fact form an intent, for this court to conclude that the lack of a voluntary intoxication instruction was clearly erroneous. See State v. Hayes, 270 Kan. 535, 542-43, 17 P.3d 317 (2001) (defendant consumed beer and whiskey but no evidence that consumption impaired his mental facilities so as to render him unable to form the requisite intent).
The legislature has not chosen to modify this court’s interpretation of K.S.A. 21-3208 in the past 28 years since our decision in Seely. We cannot now presume that our inveterate reading of the statute has impaired any rights created by the legislature. Bradford’s arguments do not show the jury was erroneously instructed.
Instruction pertaining to aiding and abetting
Bradford next contends that the jury instruction given on aiding and abetting improperly stated the law and allowed the jury to convict him of capital murder even if it only found that he aided and abetted the aggravated burglary. Neither contention has merit.
The jury instruction given stated:
“A person who, either before or during its commission, intentionally and substantially aids or abets another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed.
“Mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider and abettor.
“To be guilty of aiding and abetting in the commission of a crime the Defendant must willfully and knowingly associate himself with the unlawful venture and willfully participate in it as he would in something he wishes to bring about or to make succeed.”
In State v. Jackson, 270 Kan. 755, 760-61, 19 P.3d 121 (2001), we stated:
‘When reviewing challenges to jury instructions, we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. State v. Mims, 264 Kan. 506, 514, 956 P.2d 1337 (1998).
“In a criminal action, a trial court must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence. When considering the refusal of a trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction. State v. Sims, 265 Kan. 166, 168, 960 P.2d 1271 (1998).”
The first paragraph of the instruction given follows PIK Crim. 3d 54.05, with minor changes that 'help only to increase the standard for aiding and abetting. Neither party alleges error with this portion of the instruction.
The second paragraph of the instruction is taken from the notes of the PIK instruction, as well as the decision of State v. Green, 237 Kan. 146, 697 P.2d 1305 (1985). As stated by the notes of the instruction, and by our court, the “mere association” language is not required when giving the aiding and abetting instruction. See Jackson, 270 Kan. at 761. Again, neither party claims this portion was error.
The third paragraph of the instruction is also taken from the notes of the PIK instruction and our holding in State v. Schriner, 215 Kan. 86, 523 P.2d 703 (1974). It represents an accurate statement of Kansas law. It serves only to expand upon the definition of aiding and abetting as used in the first paragraph, thereby raising, not lowering, the evidentiary standard for a finding of guilt by aiding and abetting.
Bradford’s argument that this instruction would allow him to be found guilty of capital murder even if the juiy only found that he aided and abetted the aggravated burglary is misguided. The third paragraph of the instruction began with the phrase “To be guilty of aiding and abetting. ” Bradford was not charged with aiding and abetting, nor is that in itself a crime. Hence, a conclusion that the third paragraph was satisfied would not allow the jury to find the defendant guilty of all other crimes. Rather, the only potential for a finding that Bradford might have been guilty of a crime by aiding and abetting was presented in the first paragraph: “A person who . . . intentionally and substantially aids or abets another to commit a crime ... is criminally responsible for the crime com mitted.” This portion also clearly limits guilt by aiding and abetting to the specific crime which was aided or abetted. Bradford’s contention that he could have been found guilty of several crimes by aiding or abetting in the commission of only one fails. The trial court did not err in the instruction given.
Trial court’s correction of defense counsel on the burden of proof
During voir dire, Bradford’s counsel asserted that the burden of proof for the State was to prove its claims “beyond a reasonable doubt.” The court, in front of the seven members of the venire being interviewed at that time, chastised the defense counsel for misstating the burden of proof, specifically stating that the standard was “no reasonable doubt” rather than “beyond a reasonable doubt.” While we express doubt in Bradford’s allegations of judicial impropriety, the point is moot. The record reflects that all of those jurors were excused on the court’s own motion for fear that the court’s comments might have prejudiced them. There is no way this comment could have resulted in reversible error.
Prosecutorial misconduct during closing argument
Bradford points to the following statement of the prosecutor during closing as reversible prosecutorial misconduct because it impermissibly shifted the burden of proof:
“The defendant makes a feeble claim that because he used drugs and alcohol he could, therefore, not form the intent to premeditate the killing of Kyle and Chrystine, but, again, look at his actions. He tells us that he smoked wet in Kansas City, that he was stuck, that he felt he couldn’t move. There were other people at this party. He has a doctor he says who prescribed pain medication that he doubled up on. He could have got those other people here to testify and he didn’t.. . .
“There’s nobody that admits to that evidence other than the defendant.”
The defense counsel interposed a timely objection.
During Bradford’s opening statement, his counsel admitted he was involved in the killings, but denied the killings were premeditated. Bradford testified he had been at a party the evening of the killings; he was extremely high on PCP, marijuana, and alcohol; he was walking unevenly; and people were making fun of him. He also claimed that his doctor had prescribed muscle relaxants and pain pills for a pinched nerve and that he had taken twice the recommended dosage that day. He testified he was still under the influence of the illegal drugs and alcohol after he left the Moore’s residence. He also testified that immediately after the murders occurred, he wondered if the murders were nothing more than a hallucination caused by the PCP. Again in his closing statement, Bradford’s counsel admitted to Bradford’s participation in the murders, but denied intent and premeditation. Defense counsel reminded the jury that Bradford was on PCP at the time when the prosecution alleged that Bradford had formed his premeditation, and he stated that Bradford and Verge were “intoxicated” when they “wander[ed] to the nearest house.”
We recently analyzed this issue in State v. Deiterman, 271 Kan. 986, 29 P.3d 411 (2001). In Deiterman, the prosecution commented on the defendant’s failure to produce witnesses to support his alibi and a receipt of car parts allegedly purchased close to the time of the murder. The defendant complained that the comments impermissibly shifted the burden of proof. We noted that it was the defendant who proffered the theory about purchasing the car parts and who claimed to have been seen by several individuals close to and during the time of the murder. In upholding the propriety of the comments, we stated:
“When the theoiy of the defense is based upon facts within the personal knowledge of a particular person or persons available as witnesses and no attempt to secure their testimony is made the failure to produce available evidence may give rise to an inference that it would be adverse to the party who could have produced it.” 271 Kan. at 986.
In the present case, Bradford’s theory of defense to the capital murder charge was that he neither intentionally nor with premeditation killed the victims. Individuals who could have bolstered his defense were certainly within Bradford’s personal knowledge and available to him, including his doctor and individuals present at the party who mocked his uneven gait, yet he made no attempt to secure their presence or testimony. With premeditation and intent being in question, the State did not improperly test the theory of the defense by pointing out that Bradford failed to produce any witnesses in support thereof.
Upward, departure
Bradford next contends that the upward durational departures on his aggravated robbery, aggravated burglary, and theft convictions were unsupported by substantial and compelling circumstances. Bradford’s maximum applicable sentences were doubled pursuant to the State’s motion for upward departure, and the sentences were ordered to be ran consecutively after he completed his life sentence.
We need not discuss Bradford’s contention because subsequent to the filing of his brief herein, the Kansas upward durational departure scheme was held to be unconstitutional in State v. Gould, 271 Kan. 395, 23 P.3d 801 (2001). We looked to and followed the United States Supreme Court decision of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. (2000), and held: “Apprendi dictates our conclusion that Kansas’ scheme for imposing upward departure sentences, embodied in K.S.A. 2000 Supp. 21-4716, violates the due process and jury trial rights contained in the Sixth and Fourteenth Amendments to the United States Constitution. Gould’s sentence must be vacated and remanded for re-sentencing.” Gould, 271 Kan. at 414. Likewise, Bradford’s upward durational departure sentence for the aggravated robbery, aggravated burglary, and the theft convictions must be vacated and this matter must be remanded for resentencing.
Is the Kansas hard 40 sentencing scheme unconstitutional?
Bradford argues that the Kansas hard 40 sentencing scheme violates the guarantees of the Sixth and Fourteenth Amendments to the United States Constitution, as well as § 5 of the Kansas Constitution Bill of Rights. Since the filing of his brief, the constitutionality of the hard 40 sentencing scheme has been considered and upheld. See State v. Conley, 270 Kan. 18, Syl. ¶ 3, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001). Our decision has been subsequently affirmed by State v. Lopez, 271 Kan. 119, 142, 22 P.3d 1040 (2001). The arguments raised by Bradford have been fully considered and answered in the above-stated opinions, and we will not repeat those discussions here.
Trial court’s imposition of the hard 40 sentence after the jury refused to impose the death penalty
Bradford next contends that K.S.A. 21-4635 violated his due process rights and, therefore, is unconstitutional because the trial court was permitted to set aside the jury’s determination that the mitigating circumstances did not outweigh the aggravating circumstances. This contention is not tenable.
A brief review of the capital murder law and hard 40 sentencing scheme is helpful in understanding this creative argument. Prior to 1994, K.S.A. 21-4624 established the procedure for determining whether an individual would receive a hard 40 sentence when convicted of first-degree murder. See L. 1990, ch. 99, § 4. The statute required that in order for a jury to impose a hard 40 sentence, it had to unanimously agree that a statutory aggravating circumstance or circumstances existed, and that those circumstances were not outweighed by the mitigating circumstances. In 1994, the legislature amended the statute to apply to the administration of the death penalty rather than the hard 40 sentence; however, the balancing test of aggravating and mitigating circumstances was not changed. L. 1994, ch. 252, § 4.
In the same year, K.S.A. 21-4635 was passed. See L. 1994, ch. 341, § 6. That statute required the trial court to determine whether a defendant convicted of capital murder when the jury did not impose the death penalty should be required to serve 40 years of mandatory imprisonment. The balancing test for the death penalty was incorporated, except that the court did not need to find the existence of aggravating circumstances beyond a reasonable doubt. Just as the jury was required to determine whether the aggravating circumstances were outweighed by the mitigating circumstances, so was the court. However, K.S.A. 21-4635(c) expressly permitted the court to make findings concerning the aggravating circumstances, and the ultimate balancing of the aggravating and mitigating circumstances that might be contrary to those made by the jury during the death penalty sentencing phase.
Bradford was convicted of capital murder, but the jury could not unanimously agree on imposing the death penalty; therefore, he fell within the language of K.S.A. 21-4635(a), which stated: “[T]he trial court shall determine whether the defendant shall be required to serve a mandatory term of imprisonment of 40 years or sentenced as otherwise provided by law.”
The trial court made the determination that the statutory aggravating circumstances existed and those circumstances were not outweighed by the mitigating circumstances. The court then imposed the hard 40 sentence pursuant to K.S.A. 21-4638.
Bradford claims that the trial court, by balancing the circumstances presented to the jury yet coming to a different result, had usurped the role of the jury in violation of his due process rights. He cites no compelling authority, but does analogize the court’s action to the improper removal of a juror as discussed in State v. Stafford, 255 Kan. 807, 823-25, 878 P.2d 820 (1994). Stafford was decided under the previous statutory scheme which required a hard 40 sentence to be determined by a unanimous jury and is in no way applicable to our facts.
There are a myriad of differences between a jury’s determination and that of a court. The jury had to find beyond a reasonable doubt that there were one or more aggravating circumstances. However, to impose the hard 40 sentence, the judge had to find proof of one of the aggravating circumstances only by a preponderance of the evidence. We need not repeat our analysis made in either State v. Spain (Spain I), 263 Kan. 708, 714, 953 P.2d 1004 (1998), or State v. Spain (Spain II), 269 Kan. 54, 4 P.2d 621 (2000), which is applicable here as it relates to the imposition of the hard 40 sentence. We specifically stated in Spain I that the rules and circumstances are different when the death penalty is not implicated. 263 Kan. at 709-10. Once the death penalty was not an issue, the trial judge’s obligations were clearly and properly set forth and were lawfully exercised in this situation. The arguments of Bradford fail. The hard 40 sentence was properly entered.
Does double jeopardy prevent imposition of the death penalty if Bradford is granted a new trial?
Bradford finally argues that if he is granted a new trial, the death penalty should not be an option. In that we find no reversible error, this issue is moot.
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The opinion of the court was delivered by
Davis, J.:
Thomas Finley appeals for the second time from his jury convictions of first-degree felony murder and the manufacture of methamphetamine. This court reversed his first convictions for the same offenses in State v. Finley, 268 Kan. 557, 998 P.2d 95 (2000). The defendant argues in this appeal that he was deprived of his due process rights under the Kansas and United States Constitutions when the State destroyed certain crime scene evidence and that comments of the prosecutor during closing argument amounted to prosecutorial misconduct requiring reversal of his convictions. Finding no reversible error, we affirm the defendant’s convictions.
This case involves a methamphetamine lab fire resulting in the death of LaDonna Jones. The State’s theory at trial was that the defendant, codefendant George LaMae, the defendant’s girlfriend Denise Sklar, and the victim were on the second floor of the defendant’s house cooking methamphetamine when the fire started. Everyone but Jones escaped the fire. LaMae was charged and convicted of first-degree felony murder and manufacturing methamphetamine. His case was affirmed by this court in State v. LaMae, 268 Kan. 544, 998 P.2d 106 (2000).
Other witnesses at the defendant’s second trial include the defendant’s neighbors Renee Crabtree, Darrell Vaughan, and Amy Baird, and the mother of the defendant, Carolyn Finley. Shawn Rader, Lonnie Joe Pugh, and Elizabeth Scarlett were all present at the time of the fire and testified at trial.
The primary factual question before the jury was whether the defendant participated in manufacturing the methamphetamine. In addition to his own testimony, the defendant called his girlfriend Sklar and Walter Parrish to verify the defendant’s claim that he arrived at his house minutes after the fire started. He then attempted to save the individuals in his house as the fire burned, causing severe bums on his legs.
Prior to trial, the defendant moved to suppress evidence seized from his home based upon the destruction of some of the evidence by the State. During the hearing on the defendant’s motion, the State called L.D. Mathews, a Drag Enforcement Agent (DEA) in charge of working clandestine labs. Agent Mathews testified that he photographed and videotaped all crime scene evidence before removing it from the defendant’s house. Agent Mathews documented objects in the lab and then, according to standard operating procedures, contracted with a hazardous waste company to clean up the premises. Agent Mathews assured the court it was DEA policy to destroy materials contained in methamphetamine labs.
Agent Mathews testified that the DEA has no facility to store material seized from methamphetamine labs. Of the 19 bottles of pseudoephedrine found at the scene, Agent Mathews saved only one, believing the bottles to be “dirty” by reason of their contact with dangerous chemicals. Agent Mathews cleaned the sample bottle and put it in a plastic bag. He testified he did not see anything that might exonerate the defendant, although he admitted on cross-examination he did not yet know who the suspects were.
Agent Mathews admitted on cross-examination that DEA guidelines require the safety officer, together with a DEA chemist and a disposal service, to determine which items are hazardous. Agent Mathews was designated the site safety officer and admitted there was no DEA chemist on the scene. Further, Agent Mathews did not confer with the disposal service in determining which items should be destroyed. Finally, Agent Mathews admitted he did not obtain a court order to destroy any material seized at the home of the defendant.
The court had denied a similar motion filed by the defendant in his first trial. Upon conclusion of the hearing in this case, the court announced its decision in the first trial would apply to the defendant’s motion in this case. The trial court concluded in part: “And so the court does not find that those items were destroyed in bad faith. There was nothing there that was of an apparent exculpatory nature and so that’s the reason for the Court’s ruling regarding the destruction of the evidence.”
Additional facts regarding the defendant’s claim of prosecutorial misconduct during closing argument will be discussed when addressing the defendant’s claims. We note the defendant has not questioned the sufficiency of evidence to establish his convictions. We do not set forth the facts of this case in detail but refer the reader interested in these facts to Finley’s first reported case in Finley, 268 Kan. 557, and to the case of the codefendant in LaMae, 268 Kan 544.
Destruction of Crime Scene Evidence.
The defendant argues that his due process rights were violated when the DEA destroyed the objects associated with the methamphetamine lab. He makes two separate but related arguments. First, he argues the destruction of the crime scene hazardous materials violated his due process rights under the Fourteenth Amendment to the United States Constitution. Second, he cites cases from a number of other states purporting to grant greater protection in their state constitutions than granted under the Fourteenth Amendment to the United States Constitution. The defendant urges us to follow this authority.
The State does not address the defendant’s greater protection argument but rests its response on the defendant’s failure to establish bad faith of the State in the destruction of the evidence. The State argues that the defendant’s failure to demonstrate bad faith is fatal to his constitutional argument. We agree.
This court in LaMae analyzed the identical issue based on the same facts existing in the case we now consider. This court relied on the analysis in Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333, (1998), in concluding that the first require ment for a due process challenge following the destruction of potentially useful evidence was establishing bad faith on the part of the State. 268 Kan. at 550.
In Arizona v. Youngblood, 488 U.S. at 57, the United States Supreme Court stated that while good or bad faith of the State is irrelevant when the State fails to disclose material exculpatory evidence, the Due Process Clause requires a difference result when the State fails to preserve evidentiary material “of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” The Court stated that it was not willing to read the Due Process Clause as imposing on the police an absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance, and “requiring a defendant to show bad faith on the part of the police both limits the extent of the police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i. e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.” 488 U.S. at 58.
The determination of the question of bad faith turns on the “officers’ knowledge of the exculpatory value of the evidence at the time it was lost or destroyed,” and the question of bad faith is a question of fact. 268 Kan. at 551. The question we are presented with in this appeal is whether the district court’s findings of fact concerning the issue of bad faith is supported by substantial competent evidence and whether the findings of the district court are sufficient to support its conclusions of law. See State v. Ratley, 253 Kan. 394, 398, 855 P.2d 943 (1993).
Agent Mathews did not believe any of the destroyed evidence had an exculpatory value for any potential suspects. Substantial competent evidence supports this conclusion. The objects found at the scene were photographed and videotaped before being handled by Agent Mathews. One of the empty pseudoephedrine bottles was preserved for evidence. These items were at the defendant’s disposal to use in his defense, just as the State could use them to bolster its case. There is nothing in the record to suggest the agents working the scene should have been aware of any exculpatory value to the evidence destroyed. The evidence of record failed to establish bad faith on the part of the State, and the district court did not err in its ruling.
Finally, we pause briefly to respond to the defendant’s argument that we should give more protection under our state constitution than is afforded an accused under the Fourteenth Amendment to the United States Constitution. This position has been advanced but consistently rejected by this court. The constitutional rights granted an accused under our state constitution are coextensive with those rights granted an accused under the United States Constitution. State v. Spain, 269 Kan. 54, 59, 4 P.3d 621 (2000).
Prosecutorial Misconduct
The defendant argues that the prosecutor engaged in sufficiently egregious misconduct during closing argument to require reversal of his convictions. Specifically, he argues (1) the prosecutor appealed to community interest, (2) the prosecutor expressed her personal opinion regarding the defendant’s credibility, (3) the prosecutor expressed her personal opinion regarding one of the State’s witnesses, (4) the prosecutor improperly defined reasonable doubt for the juxy, and (5) tire cumulative effect of the misconduct requires reversal. We examine his contentions below and conclude that the errors occurring did not deprive the defendant of a fair trial.
Scope of Review
The analytical framework for resolving questions of prosecutorial misconduct on the appellate level is well settled in Kansas:
“Kansas does not ordinarily apply the plain error rule and reversible error normally cannot be predicated upon a complaint of misconduct by the prosecutor during closing argument where no contemporaneous objection is lodged. However, if the prosecutor’s statements rise to the level of violating a defendant’s right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection. [Citation omitted.]
“An appellate court’s analysis of the effect of a prosecutor’s allegedly improper remarks in closing argument is a two-step process: First, the appellate court must determine whether the remarks were outside the considerable latitude the pros ecutor is allowed in discussing the evidence. Second, the appellate court must determine whether the remarks constituted plain error. [Citation omitted.]” Finley, 268 Kan. at 571-72.
The inquiiy of whether the remarks constitute plain error requires an analysis of whether the errors were so gross and flagrant as to prejudice the jury against the accused, thereby denying the accused a fair trial. 268 Kan. at 572. The accused is denied a fair trial if the reviewing court is unable to determine from reviewing the record as a whole that the error had little, if any, likelihood of changing the result of the trial. 268 Kan. at 572.
Before addressing the defendant’s specific complaints, we note that the evidence in this second trial relating to the defendant’s guilt was overwhelming compared to the weaker evidence presented during the defendant’s first trial. The analysis finding reversible error in the first case relied in part on the fact that “evidence of the defendant’s presence was not overwhelming.” 268 Kan. at 572. However, the conviction in this case contained not only all the evidence in the first trial, but also reflected the testimony of the codefendant, George LaMae. After defendant’s first trial, LaMae was convicted and the court determined in this case that LaMae had no Fifth Amendment right to silence. LaMae’s testimony directly implicated the defendant’s involvement in the methamphetamine cooking process which caused the fire resulting in the death of Jones. Moreover, the State’s other witnesses, including Rader, Pugh, and Scarlett, contradicted the defendant’s story by placing him at the house when he claimed to be at another place.
(1) Improper Appeal to Community Interests
The defendant complains the prosecutor improperly appealed to community interests with the following comments:
“There are certain types of felonies that are so dangerous that our legislature has decided that if people are going to commit those kind of felonies, then they’re going to be held responsible for the deaths or the injuries or the consequences that occur during the commission of those felonies.
“The purpose of the law is to hold those people accountable even for reckless acts. The State is not claiming that Mr. Finley intended to kill LaDonna Jones that morning. Even if it was a reckless act though, an unintended killing, it was still a felling during the commission of an inherently dangerous felony and our law says that he is to be held responsible for that felling. That’s what felonymurder is.
“We don’t want people making meth in our communities.”
The defendant objected and the court sustained the objection. Then, the prosecutor continued with the following: “The rationale behind the felony murder rule is to prevent people from making meth in our community.” This time, the defendant’s objection was overruled.
Later, the prosecutor closed her arguments with the following:
“He’s not accepting responsibility for what he did. And his behaviors are exactly why we have this felony murder rule. He cannot expect to get away with this felling. He was involved in the commission of a very, very dangerous felony, one that our law says is an inherently dangerous one. And as a result, a fire broke out and felled LaDonna Jones. And if you follow the judge’s instructions on that law, then you must find him guilty of not only intentionally manufacturing or making methamphetamine, but also hold him responsible for LaDonna’s death because of that. Thank you.”
The defendant did not object to this argument.
“In summing up a case before a jury, the prosecutor may not introduce or comment on the facts outside the evidence, but reasonable inferences may be drawn from the evidence and considerable latitude is allowed in discussing it.” State v. Duke, 256 Kan. 703, 720, 887 P.2d 110 (1994). The comment that the defendant was not accepting responsibility for his actions is a comment based on a fair inference drawn from the evidence. The inference is that the defendant was not telling the truth with his story that he was elsewhere when the fire broke out. Such an inference is permissible based on testimony presented by the State’s witnesses who were in and about the house prior to the fire, including Pugh, LaMae, Rader, and Scarlett. Moreover, when the prosecutor was discussing how manufacturing methamphetamine is an inherently dangerous felony, she was commenting upon the trial court’s instructions.
The prosecutor’s comments asking the jury not to let the defendant get away with the crime is in most instances permissible comment. In State v. Cravatt, 267 Kan. 314, 332, 979 P.2d 679 (1999), we considered closing arguments wherein the prosecutor said: “Don’t let a murderer go free because of these half-baked theories the defense has presented to you.” The court characterized the statement as follows: “Rather than promise dire consequences if the defendant was set free, the remarks asked the jury not to let a person who had, from the evidence, committed murder go free simply because of the defendant’s highly implausible statements.” 267 Kan. at 333. Similarly, the prosecutor’s comment in this case was not an appeal to community interests in the sense that a not guilty verdict would have some sort of negative impact on the community. Rather, the prosecutor was arguing the defendant should not escape responsibility for this crime based on his highly implausible story that he just happened to show up very early in the morning just seconds after the fire had started, having no knowledge of the methamphetamine lab in his house.
The prosecutor’s comment “[w]e don’t want people making meth in our communities” and the comment regarding the prevention of “people from making meth in our community” were improper in that such comments inferentially ask the jury to render a verdict to protect the community. However, when these comments are considered in the context of the entire argument, they do not amount to reversible error. These comments relate to the dangerousness of the act of manufacturing methamphetamine, an act mentioned in the trial court’s instructions and thereafter fair comment by a prosecutor. Here, the comments go too far, but in light of the record as a whole and the overwhelming evidence of guilt, we conclude beyond a reasonable doubt that the comments had little if any likelihood of changing the result of the trial. See State v. McCorkendale, 267 Kan. 263, 278-79, 979 P.2d 1239 (1999).
(2) Prosecutor’s Opinion on Finley’s Credibility
The defendant argues the prosecutor improperly expressed her opinion regarding the veracity of the defendant and his witnesses. The defendant complains of the following:
“Tom and Denise Sklar both testified pretty consistently with each other, but their stories are incredible and they’re virtually impossible to believe. What are the odds that they would pull up to the house at exactly the same time that the fire is breaking out, at exactly the same time that George LaMae was running down the stairs and coming out of the house? What are the odds of that? Isn’t that just coincidental? That’s a pretty big coincidence if it is.
“And don’t forget all the inconsistencies that I pointed out in Tom’s prior sworn testimony. He’s said various things at various times, and the reason why people do that is because they can’t keep all the lies straight.”
Again, there was no objection lodged by the defendant to any of the above comments.
This court in State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000), noted the following with respect to comments on witness credibility:
“Pabst’s credibility was crucial to the case. The prosecutor placed before the jury unsworn testimony which it should not have considered: his personal opinion on Pabst’s credibility and the credibility of the State’s evidence. Stating facts not in evidence is clearly improper. [Citation omitted.] Accusing Pabst of lying goes far beyond the traditional wide latitude afforded to prosecutors in closing argument. [Citation omitted.] Inherent in this wide latitude is the freedom to craft an argument that includes reasonable inferences based on the evidence. When a case develops that turns on which of two conflicting stories is true, it may be reasonable to argue, based on evidence, that certain testimony is not believable. However, the ultimate conclusion as to any witness’ veracity rests solely with the jury.”
The Pabst court reversed the conviction based on the prosecutor’s having injected his personal opinion about the credibility of the defendant. 268 Kan. at 510-12.
The prosecutor’s argument in the present case was not improper. The prosecutor based her argument on an inference drawn from the nature of the defendant’s conflicting stories, not on the prosecutor’s knowledge of the defendant’s veracity. Furthermore, the phrase “they can’t keep all the lies straight” does not come close to the egregious manner in which the prosecutor in Pabst called the defendant a liar. See 268 Kan. at 505-06. As the comment purported to be based on evidence, not on the prosecutor’s personal knowledge of the defendant’s veracity, it cannot be said the prosecutor’s comment denied the defendant a fair trial.
The defendant further argues that the following comment by the prosecutor was improper:
“And Tom and Denise are the only ones that really have a motive to fabricate any lies in this case. He’s not going to — he might admit to you that he uses drugs, that he used them, that he hangs out with people, but he’s not going to admit that he made meth on this day because that would be admitting to felony murder. And Tom and Denise had plenty of time to get their stories straight, to conjure up what they were going to tell you all.”
The above comments constitute fair comment on the evidence concerning the defendant’s motives. While Pabst informs us the use of the word “He” or its derivative should be avoided by prosecutors, the above argument concerning motive is a fair comment based on reasonable inferences from the evidence. Furthermore, the fact that the defendant and SHar had time to coordinate their stories is a fair observation. The defendant and SHar first went to the defendant’s mother’s house after the fire, and then went to a hotel. During this time, they certainly had time to agree on their version of the morning’s events.
Last, the defendant complains of the following:
“And I’m Sony, but I just can’t buy this story that Tom and Denise come up with that Tom was somewhat of a hero risking his life to go in and save these people in the house. It seems to me there was no remorse for LaDonna’s injuries or her death. Only emotion that we saw from him or Denise came when they were testifying about his own injuries. Doesn’t seem like a martyr to me.”
The defendant did not object to the above comment. While the prosecutor’s comments are based on her belief that the defendant’s story is incredible, to the extent she expresses her belief as to credibility she commits error. It is for the jury to resolve questions of credibility and it is improper for a prosecutor to express his or her personal belief about the credibility of witnesses testifying at trial. 268 Kan. at 507, 510. A prosecutor may, however, discuss the credibility of witnesses as revealed in the evidence presented at trial.
Given our standard of review and the overwhelming evidence of guilt, we conclude that the above error had little likelihood of changing the result of the trial. We are able to conclude that the error was harmless beyond a reasonable doubt.
(3) Prosecutor’s Opinion on Truthfulness of State’s Witnesses
The defendant also argues the prosecutor improperly commented on the truthfulness of the State’s witnesses. In closing arguments, the prosecutor argued:
“Why wouldn’t he just say somebody else did it? Why wouldn’t he blame Shawn? Why wouldn’t he blame Lonnie Pugh? Why wouldn’t he say Mike Quinn and him were doing it? Why would he point to Tom? There’s no ax for him to grind against Tom Finley. He says it was Tom because it’s true. He and Tom were up there making the meth. And all the physical evidence and the testimony of tíre witnesses corroborates George LaMae’s story, his version of it, not Tom Finley’s.”
The above comments discuss the testimony of a critical witness for the State, the co-defendant George LaMae and his apparent lack of motive to lie compared with the defendant’s motive to lie. The comments do not constitute error but are fair comment based upon the trial evidence.
The prosecutor did commit error when she argued before the jury that “every time that the defendant objected to the admission of their evidence, you noticed that it was overruled because there’s no basis in law for that objection. They didn’t do anything wrong.” The defendant’s objection was overruled. It is a well established law in this state that rulings of the trial court on objections to evidence are not a proper subject for a prosecutor’s closing argument. Why any prosecutor would conclude otherwise and mention such rulings in closing argument to bolster its case before the jury is beyond any good answer. When the law is so clear we cannot understand why such errors occur. However, we conclude that the error had little likelihood of changing the result of the defendant’s trial. Given the overwhelming evidence of guilt in this case, and the brief nature of the prosecutor’s comment, we conclude that the error committed was harmless beyond a reasonable doubt.
(4) Improper Definition of Burden of Proof
The defendant also argues the prosecutor improperly defined the State’s burden of proof with the following:
“I would submit to you that a reasonable doubt is really nothing more than a fair doubt that’s based on reason and common sense and arises from the status of the evidence. It’s impossible for me to prove everything to you by an absolute certainty. At the same time, a defendant should not be convicted just on speculation and conjecture, but you have much more than that in this case. You don’t just have speculation or conjecture that Tom Finley is guilty. All the evidence, all the inferences to be drawn from that evidence point to only one verdict in this case, and that is that Tom Finley is guilty. Thank you.”
The defendant failed to object to the prosecutor s argument regarding the burden of proof.
The defendant argues this court’s decision in State v. Mitchell, 269 Kan. 349, 7 P.3d 1135 (2000), requires a finding that the above is improper comment on the reasonable doubt standard. Mitchell is not helpful because it involves the prosecutor’s attempt to equate “reasonable doubt” with “common sense.” 269 Kan. at 358. The defendant also cites State v. Banks, 260 Kan. 918, 927 P.2d 456 (1996). The Banks court held the following definition of reasonable doubt to be improper: “Reasonable doubt means if you are going to say these men are not guilty of something, you have to give a reason for it.” 260 Kan. at 926. It should be noted that the Banks court, in an analysis of the lower court’s refusal to grant a mistrial based on the faulty definition, ultimately affirmed the trial court. 260 Kan. at 927-28.
The Tenth Circuit in U.S. v. Miller, 84 F.3d 1244, 1251-52 (10th Cir. 1996), rev'd in part on other grounds U.S. v. Holland, 116 F.3d 1353 (10th Cir. 1997), approved the following instruction used by a trial court:
“A reasonable doubt is a fair doubt based on reason and common sense and arising from the state of the evidence. It is rarely possible to prove anything to an absolute certainty, but at the same time, a defendant is not to be convicted on mere suspicion or conjecture. You are instructed that a reasonable doubt is a doubt that would make a reasonable person hesitate to act in the graver and more important transactions of life.”
The problem with the prosecutor’s argument in this case is that she stopped after the “suspicion or conjecture” language. Thus, the risk is that the definition gave the jury the impression something more than suspicion or conjecture is sufficient to reach reasonable doubt; however, this ignores the first part of the prosecutor’s argument, which defined reasonable doubt in the language sanctioned by the Miller court. It cannot be said the prosecutor’s argument regarding the burden of proof denied Finley a fair trial.
Cumulative Prosecutorial Misconduct
Last, the defendant argues the cumulative nature of the prosecutor’s comments should result in a reversal. This argument fails as well. Many of the prosecutor’s allegedly improper comments are proper. Keeping in mind the testimony of LaMae, Scarlett, Pugh, and Rader, which contradicted the defendant’s stoiy, it cannot be said any error had the effect of changing the outcome of this trial.
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The opinion of the court was delivered by
Allegrucci, J.:
This is a teacher discharge case involving a change of circumstances that necessitated a reduction in force. The due process hearing officer concluded that North Central Kansas Technical College’s (NCTC) discharge of Margarette McReynolds was unlawful. NCTC appealed the hearing officer’s decision to the district court, which affirmed the hearing officer’s decision. NCTC appealed the district court’s decision. The appeal was- transferred from the Court of Appeals to this court on NCTC’s motion.
The hearing officer made findings of fact, which were not challenged in the district court and, although quibbled with, are not effectively challenged on this appeal. In the district court, NCTC stated the following two questions of law as the only issues to be decided by the court: 1. May NCTC terminate a tenured instructor after May 1 for a reduction in force? 2. Does a hearing officer have authority to enter a judgment for interest?
In this court, NCTC has expanded its statement of the issues to three: 1. May NCTC terminate a tenured instructor after May 1 for a reduction in force due to low enrollment? 2. May the hearing officer substitute his or her judgment for that of NCTC as to the date a decision must be made on low enrollment necessitating a reduction in force? 3. Does a due process hearing officer have authority to enter a judgment for interest?
NCTC’s brief implies there may be a factual question involved in the second issue, which on its face is a legal question about the scope of the hearing officer’s authority. NCTC asserts that the hearing officer ignored evidence and that the record establishes certain things about NCTC’s timing. At this stage, however, no factual issue remains, and the second issue articulated by NCTC in this court will be treated as a question of law.
The findings of fact of the hearing officer relevant to our decision are as follows:
“1. On August 31, 1999, Margarette McReynolds and the College entered into a Contract of Employment for Mrs. McReynolds to teach nursing during the 1999-2000 school year at the College for 219 days with a salary of $34,348.18 which included extended hours. The stated term of the contract was from August 2,1999 thru June 23, 2000. The Contract of Employment specifically incorporates by reference K.S.A. 72-5410 through 72-5445.
“2. The nursing program of the College during the 1999-2000 school year had a staff of three full time teachers and one classified para-professional.
“3. The College is subject to state regulations that require that the number of students to teacher ratio cannot exceed ten to one (10/1 ratio) in the clinical portion of its nursing program.
“4. The College is not subject to such regulation as to the number of students per teacher in the normal classroom instruction portion of its nursing program.
“5. In April of each year the Board of Control of the College reviews all its programs, including the nursing program, for the purpose of assisting the Board of Control in its determination as to whether or not to build up, maintain, reduce, or eliminate a particular course of education at the College.
“6. As part of such review, the Board of Control of the College has set up procedures to solicit and obtain pre-enrollment data as to the various programs intended to be offered by the College.
“7. The April 2000, pre-enrollment data indicated to the College that only 19 students were interested in enrolling in the College’s nursing program for the fall semester of 2000 (down from a class size of 36 for the school year 1999-2000. This pre-enrollment figure of 19 nursing students was cause for alarm by the administration of the College, particularly in view of past pre-enrollment data which showed:
Pre-enrollment Year Number of Students
1996 25
1997 29
1998 34
1999 36
From its past experience, however, the College was aware that a more certain knowledge of the number of students actually enrolling for the following fall semester is not available until June or July.
“8. Prior to May 1, 2000, Mrs. Margarette McReynolds was not terminated nor was she notified of any nonrenewal of her contract.
“10. Dr. D.W. Reeves considered recommending to the Board of Control of the College that the nursing program be eliminated, largely because of budgetary constraints, but as of June 16, 2000, he decided instead to recommend to the Board of Control that there be a reduction in force in the staff for the nursing program.
“11. Dr. D.W. Reeves decided by June 16,2000, that the position of the clinical aide would be eliminated. He also determined by that date that the number of full time nursing instructors would be reduced from 3 in the 1999-2000 school year to 2 in the 2000-2001 school year. ... It was determined by the evaluation process that the other instructor’s evaluations were superior to that of Mrs. McReynolds. . . . The decision of the College’s administrators and Board of [Control] was motivated entirely by the low enrollment of students in the nursing program with the resulting budgetary constraints.
“12. On June 16, 2000, Dr. D.W. Reeves verbally informed Mrs. McReynolds that for the 2000-2001 school year, her contract would be reduced to part-time status. This was the first notice that Mrs. McReynolds had received on the subject.
“13. On June 23, 2000, Dr. D.W. Reeves called Mrs. McReynolds to his office and handed her a piece of paper upon which he had written: T hereby resign my full-time in exchange a contract 101 days (sic)’, and, requested that Mrs. McReynolds sign it. She refused.
“14. On June 23, 2000, Mrs. McReynolds prepared, and posted by certified mail, a letter to the Board of Control and Dr. D.W. Reeves in which she objected to the termination of her full-time employment and setting forth the basis for her objection, to-wit: ‘Please be informed that you are unable to do this because prior notification was not given on or before May 1.’
“15. On June 24,2000, at a regularly scheduled meeting of the Board of Control of the College, Dr. D.W. Reeves recommended that the Board of Control reduce staff in the College’s nursing program and the Board of Control approved the same.
“16. After this June meeting of the Board of Control, the employment of the one clinical aide was terminated, and on June 26, 2000, Mrs. McReynolds was again verbally notified that her contract for the year 2000-2001 school year was to be reduced from 219 days to 101 days.
“17. On July 24,2000, the Board of Control of the College adopted a resolution to terminate Mrs. McReynolds’ contract of employment for the following reason: ‘A reduction in force due to low enrollment.’
“18. On July 25, 2000, the College thru Dr. D.W. Reeves notified Mrs. McReynolds in writing that her contract of employment for 2000-2001 was terminated and offered her a new contract of employment for 101 hours.
“19. Mrs. McReynolds has been teaching at the College under the College’s 101 days contract of employment which it proffered and which she has refused to sign.
“20. Mrs. McReynolds sought relief by invoking her right to a due process hearing which has led to this hearing. There is no issue concerning notice, or lack thereof, in regard to her due process hearing request.
“21. As of commencement of school in August of 2000, the actual enrollment in the College’s nursing program was 31.”
The hearing officer concluded that McReynolds was improperly discharged and that she should be paid the difference between what she would have been paid for full-time teaching and what she received for part-time employment during the 2000-2001 school year, plus interest. The district court affirmed. We review the hearing officer’s decision as though the appeal had been made directly to this court. See U.S.D. No. 500 v. Robinson, 262 Kan. 357, 361, 940 P.2d 1 (1997). Our review of the due process hearing officer’s decision is limited to deciding if: (1) the hearing officer’s decision was within the scope of his or her authority; (2) the hearing officer’s decision was supported by substantial evidence; and (3) the hearing officer did not act fraudulently, arbitrarily, or capriciously. 262 Kan. 357, Syl. ¶ 1.
The contractual relationships of teachers and boards of education are governed by a statutory scheme, which includes K.S.A. 2001 Supp. 72-5411(a) on the continuation of teachers’ contracts:
“All contracts of employment of teachers in the public schools in the state shall continue in full force and effect during good behavior and efficient and competent service rendered by the teacher, and all contracts of employment shall be deemed to continue for the next succeeding school year unless written notice of intention to terminate a contract of employment is served by a board of education upon any teacher on or before May 1. A teacher shall give written notice to the board of education of a school district that the teacher does not desire continuation of a contract of employment on or before May 15 or, if applicable, not later than 15 days after final action is taken by the board of education upon termination of professional negotiation absent a binding agreement under article 54 of chapter 72 of Kansas Statutes Annotated, whichever is the later date.”
K.S.A. 72-5412 provides:
“All contracts shall be binding on both the teacher and board of education of the school district until the teacher has been legally discharged from such teacher’s teaching position or until released by the board of education from such contract. Until such teacher has been discharged or released, such teacher shall not have authority to enter into a contract with the board of education of any school district for any period of time covered in the original contract.”
K.S.A. 2001 Supp. 72-5437(a) provides:
“All contracts of employment of teachers . . . shall be deemed to continue for the next succeeding school year unless written notice of termination or nonrenewal is served as provided in this subsection. Written notice to terminate a contract may be served by a board upon any teacher prior to the time the contract has been completed, and written notice of intention to nonrenew a contract shall be served by a board upon any teacher on or before May 1. A teacher shall give written notice to a board that die teacher does not desire continuation of a contract on or before May 15 or, if applicable, not later than 15 days after final action is taken by the board upon termination of professional negotiation absent a binding agreement under article 54 of chapter 72 of Kansas Statutes Annotated, whichever is the later date.” (Emphasis added.)
The hearing officer concluded that NCTC’s termination of McReynolds’ contract was improper. The hearing officer reasoned as follows:
“The Board of Control has interpreted the words: ’Written notice to terminate a contract may be served by a board upon any teacher prior to the time the contract has been completed,’ to mean that it has the absolute right of termination at any time after May 1 for ‘good cause’, in this instance, the good cause of the necessity for reduction in force. . . .
“The Board of Control appears to be using this phrase at issue to negate the notice deadline of May 1 by equating its good cause for reduction in force to discharge for teacher misconduct. Teacher misconduct is not at issue here. I again look to Gillett v. U.S.D. 276 [, 227 Kan. 71, 605 P.2d 105 (1980),] for guidance. I direct the attention of the parties specifically to page 75,76 and 77 of the opinion. After review of Gillett, I believe that the Court in this particular matter would require a due process hearing officer to determine whether or not the good cause for termination given by the Board of Control is closely connected to Mrs. McReynolds’ conduct. As no such misconduct on the part of the teacher exists, then the due process requirements inherent in K.S.A. 72-5436 et seq. causes the focus to shift to the continuing contract provisions as set forth in K.S.A. 72-5411 and - 5412.”
Within the Kansas statutory scheme, a tenured teacher such as McReynolds may be nonrenewed only if good cause is shown. See Coats v. U.S.D. No. 353, 233 Kan. 394, 397, 662 P.2d 1279 (1983). In this case, NCTC’s knowledge in April 2000 that only 19 students had preenrolled for nursing classes in the fall constituted good cause to nonrenew McReynolds’ contract. NCTC did not give McReynolds written notice on or before May 1 of its intention to nonrenew her contract, as required by our statutes. Under the Kansas continuing contract law, NCTC’s inaction effectively renewed McReynolds’ contract.
NCTC’s position is that it is statutorily authorized to terminate McReynolds’ renewed contract at any time. Thus, its argument continues, by terminating McReynolds’ 2000-2001 contract on July 25, 2000, NCTC acted within its statutory authority and in good faith. NCTC relies on a literal reading of the sentence in K.S.A. 2001 Supp. 72-5437(a) that is italicized in the previously quoted section.
That sentence in K.S.A. 2001 Supp. 72-5437(a) is one of many that govern teachers’ contracts. In construing statutes and determining legislative intent, several provisions of an act, in pari materia, must be construed together with the aim of reconciling and bringing them into workable harmony if possible. State v. Bolin, 266 Kan. 18, 24, 968 P.2d 1104 (1998). We have seen that a principal tenet of the Kansas statutory scheme is that teachers’ contracts continue in the absence of action to stop them. See K.S.A. 2001 Supp. 72-5411. Teachers and schools alike are bound by the continuing contract law. K.S.A. 2001 Supp. 72-5411 requires a school to act by May 1 and a teacher to act by May 15 to prevent contract renewal. K.S.A. 72-5412 provides that before a teacher is discharged or released, he or she has no authority to enter into a contract with another school and that doing so without authority subjects a teacher to suspension of his or her certificate. This scheme promotes stability in the state’s schools and affords a time when teachers and schools may match needs. Teachers whose contracts will not be renewed are seeking employment for the next school year at the same time as schools that have received notice of teacher nonrenewal are seeking to fill positions, and both teachers and schools have time to make new arrangements before the next school year begins.
Uncertainty under the continuing contract law is minimized, but there is an escape clause in K.S.A. 72-5412 that makes renewed contracts voidable in the event that a school’s public hearing on its budget should occur after renewal of contracts and the budget does not include adequate funds for the compensation provided for in the contracts. NCTC does not claim that it fits within this exception to the law.
NCTC knew in April 2000 that enrollment in the nursing program projected for fall 2000 was down to 19 students from 36 preenrolled students for 1999. According to the hearing officer, NCTC’s decision to discharge McReynolds was motivated entirely by the low enrollment of students in the nursing program. Although NCTC knew in April to expect low enrollment of nursing students, it waited until July 25 to give McReynolds written notice that she would not be employed full time by NCTC during the 2000-2001 school year, which began in August. By delaying its action, NCTC caused McReynolds to miss a significant portion of the period used by teachers seeking schools and schools seeking teachers to find a match.
The statutory due process procedure is available to any tenured teacher who receives a notice of nonrenewal or termination. See K.S.A. 2001 Supp. 72-5445(b); K.S.A. 72-5439; K.S.A. 72-5438. At a due process hearing, the school bears the burden of proving that its reasons for interrupting the otherwise continuing contract of the teacher constitute good cause. In Gillett v. U.S.D. No. 276, 227 Kan. 71, 78, 605 P.2d 105 (1980), the court described the purpose of the due process hearing as being “to develop the grounds that have induced the board to give the teacher notice of its desire to discontinue her services, and to afford the teacher an opportunity to test the good faith and sufficiency of the notice.” The court held that
“under the Kansas due process statute . . . a tenured teacher may be terminated or nonrenewed only if good cause is shown, including any ground which is put forward by the school board in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the school board’s task of building up and maintaining an efficient school system.” 227 Kan. at 78.
The hearing officer concluded that NCTC acted with good cause in determining that a reduction in force was necessary and in selecting McReynolds as the teacher to be released from among the nursing teachers. The hearing officer, however, concluded that NCTC acted without good cause by delaying until July 25, 2000, to act on the necessity of reducing die number of nursing teachers that had been “clearly evident” to NCTC since April 2000. According to the hearing officer, NCTC’s termination of McReynolds in July substantially reduced her opportunity to seek viable alternative employment, “particularly as is the case here, where the number of schools offering a specialized course of instruction are severely limited.” In other words, NCTC’s termination of McReynolds in July despite knowing in April of the necessity of a reduction in force defeated the purpose of the statutory scheme: “The purpose of the continuing contract law is to eliminate uncertainty and possible controversy regarding the future status of a teacher and a school with respect to the teacher’s continued employment.” Krahl v. Unified School District, 212 Kan. 146, Syl. ¶ 2, 509 P.2d 1146 (1973).
The hearing officer’s decision that NCTC acted without good cause is not unauthorized or unsupported by evidence or fraudulent, arbitrary, or capricious. The hearing officer determined that NCTC would have been acting with good cause if it had given McReynolds written notice on or before May 1 of its intention to nonrenew her contract. By waiting so long after knowing that a reduction in force was necessary before giving McReynolds written notice of termination, NCTC skewed the statutory scheme so that it served the school’s need but did not serve McReynolds’ need. As the hearing officer noted, McReynolds was deprived of the full opportunity contemplated under the statute for obtaining another teaching position. The statutoiy scheme binds and benefits teachers and schools alike. NCTC knew in April of the change in circumstance that required discharging one of the nursing teachers, but NCTC allowed the May 1 deadline for giving written notice of its intention not to renew to pass without action. If McReynolds had been given written notice by May 1, she would have had 3 full months to seek other employment. Under Kansas law, McReynolds’ contract with NCTC was automatically renewed, and NCTC gave no indication that it did not intend to honor the contract. In mid-June she was told that her contract would be reduced to part-time, but she objected. She received no written notice that her full-time status was terminated until July 25, 2000, which was only 7 days before the 2000-2001 contract year began. McReynolds then accepted part-time employment with NCTC for the 2000-2001 school year but refused to sign a contract. NCTC created a situation where it could cut McReynolds’ salary in half and still meet the required 10-to-l student-to-teacher ratio for the clinical portion of the nursing program. The hearing officer believed that NCTC’s conduct unreasonably deprived McReynolds of a practical opportunity to find a full-time teaching position. NCTC’s unreasonable conduct is inconsistent with acting with good cause. To hold otherwise would render K.S.A. 2001 Supp. 72-5411(a) meaningless.
Nonrenewal and termination are differentiated in K.S.A. 2001 Supp. 72-5437(a) by procedural requirements. The hearing officer’s application of the statutoiy scheme in the present case respects the difference. The change of circumstances in this case was NCTC’s learning in April 2000 that the number of nursing students who had pre-enrolled for fall 2000 classes was 19, down from 36 preenrolled students in 1999. The hearing officer found that NCTC had good cause in April 2000 to nonrenew McReynolds’ contract. NCTC, however, did not react to its change in circumstances at that time. Although it knew of the change in circumstances in time to give McReynolds notice of its intention not to renew her contract by May 1, NCTC allowed her contract to be renewed under the law. The hearing officer found that NCTC’s termination in July due to the change of circumstance that it knew of in April was unreasonable due to the pernicious effect of the delay on McReynolds, which the statutory scheme was intended to avoid. We find the hearing officer’s reasoning and decision are consistent with the statutory differentiation between nonrenewal and termination.
NCTC also contends that a hearing officer cannot substitute his or her judgment for that of the NCTC Board as to the date a decision must be made on low enrollment necessitating a reduction in force. NCTC’s position is that it alone has the authority to decide when an employee should be terminated. Under an earlier statutory procedure, see Gillett, 227 Kan. at 79, the school’s judgment was authoritative in certain circumstances. The 1991 statutory amendment shifted authority to make the final good cause determination to an independent hearing committee, and the 1992 amendment authorized the hearing officer to make that determination. See Robinson, 262 Kan. at 363. In the statutory scheme that has been in effect for 10 years, there is no merit to the argument that the hearing officer, who is empowered to make the final good cause determination, cannot substitute his or her judgment for that of the school.
NCTC’s final contention is that a hearing officer does not have authority to enter a judgment for interest. The hearing officer awarded interest to McReynolds “on the difference between the full time contract salary and the part time contract salary at the statutory rate until paid.” NCTC contends that the hearing officer had neither express nor implied authority to do so.
McReynolds argues that the authority to award interest is an inherent or implied power of a hearing officer and that her property right in continued employment will not be fully restored unless NCTC pays interest for depriving her of the use of her contract proceeds.
Both arguments miss the point in that McReynolds is entitled to prejudgment interest under K.S.A. 16-201, which provides:
“Creditors shall be allowed to receive interest at the rate of ten percent per annum, when no other rate of interest is agreed upon, for any money after it becomes due; for money lent or money due on settlement of account, from the day of liquidating the account and ascertaining the balance; for money received for the use of another and retained without the owner’s knowledge of the receipt; for money due and withheld by an unreasonable and vexatious delay of payment or settlement of accounts;, for all other money due and to become due for the forbearance of payment whereof an express promise to pay interest has been made; and for money due from corporations and individuals to their daily or monthly employees, from and after the end of each month, unless paid within fifteen days thereafter.”
The general rule is that prejudgment interest is allowable pursuant to K.S.A. 16-201 unless the claim for damages is unliquidated. “This court has defined liquidated as follows: ’A claim becomes liquidated when both the amount due and the date on which it is due are fixed and certain, or when the same become definitely ascertainable by mathematical computation.’ [Citation omitted.]” Kansas Baptist Convention v. Mesa Operating Ltd. Partnership, 258 Kan. 226, 246, 898 P.2d 1131 (1995). The amount of backpay due to McReynolds from NCTC was easily calculated, and she is entitled under the statute to interest on it. Moreover, there is precedent in our cases for an award of back pay plus interest to a wrongfully discharged teacher. See Coats, 233 Kan. at 404. The trial court was correct in affirming the decision of the hearing officer.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by ' •
Johnston, C. J.:
This is an action by C. C. Gard to recover from J. M. St, John, and the Farmers State Bank of Westmoreland, a commission for procuring a purchaser of real estate of which he had been deprived by the alleged fraudulent manipulation of the defendants. The plaintiff filed a petition containing two causes of action and a demurrer being filed to each cause on the ground that the action was barred by the two-year statute of limitations for relief on the ground of fraud, the court sustained a demurrer as to the first count and overruled it as to the second. Plaintiff appeals.
It was alleged in the first count that St. John, the cashier of the Farmers State Bank, in behalf of the owner, engaged plaintiff to find a purchaser for the land, and agreed to pay him a commission for that service; that he did find a purchaser named Charles White and has earned the commission. It appears from the pleadings that Scritchfield was the owner of a tract of land, that he was deeply in debt and had given a mortgage thereon to the bank for its indebtedness. The land, it appears, was sold by the owner to St. John, the cashier of the bank, and was later conveyed by him to Charles White, the purchaser that plaintiff had procured. It was alleged the purchaser so found had paid the sum of $18,500 for the land, and that plaintiff had performed all of the acts required of him by the agreement, but that St. John, for the purpose of deceiving the plaintiff and defrauding him out of the commission, took the land in his own name and subsequently by deed conveyed it to White; that St. John claimed that he had sold the land to one Cravens, but it is alleged that his representations were fraudulent and false. It appears that more than two years had elapsed between the transaction and the filing of the petition and that the demurrer was sustained on the theory that it was a cause of action for fraud and was barred by the statutory limitation.
Under the facts stated the basis of the relief is the alleged deception and fraud of the defendant. It is not claimed that a purchaser that bought directly from the owner, or from one who sells his own property, would be required to pay a commission. To obviate a mere fraudulent pretense it was alleged by plaintiff that the land was in fact purchased by White, but that St. John, to defraud plaintiff out of his commission, went through the form of buying it for himself and then transferring it to White, and at the same time falsely representing that it had been sold to Cravens and by him conveyed to White. Under the averments of the petition the plaintiff must show fraud in order to be entitled to a recovery, and hence the action must be regarded as one for relief on the ground of fraud. (Nelson v. Stull, 65 Kan. 585, 68 Pac. 617, 70 Pac. 590; Orozem v. McNeill, 103 Kan. 429, 175 Pac. 633.) The bar of the statute on that kind of action having fallen the demurrer was properly sustained.
The judgment is affirmed.' | [
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The opinion of the court was delivered by
Burgh, J.:
The action was one to recover from persons who guaranteed payment of another’s account. Plaintiffs were defeated, and appeal.
Plaintiffs sold goods to Hartwick under a written contract, beneath which, on the same sheet, appeared a contract of guaranty which was signed by Hoard, Nordgren and White. The guarantors defended on the ground their signatures were procured by fraud. After a trial, which occurred in 1924, judgment was rendered in favor of plaintiffs, against Hartwick. A new trial of the issue of fraud was granted as to the guarantors. At a trial which occurred in 1925 the jury disagreed. At a trial which occurred in April, 1926, defendants introduced their evidence, and rested. A demurrer to the evidence was interposed, and overruled. Plaintiffs then intro duced evidence, defendants introduced evidence in rebuttal, and all parties rested. Plaintiffs then moved for judgment in their favor. The motion was denied, the court instructed the jury, and the jury returned a verdict for defendants, together with the following special findings:
"1. Do you find that the defendant, Hoard, was deceived by anyone as to the character of the guaranty signed by him? A. Yes.
“2. If your answer to No. 1 is in the affirmative, state whether the person who so deceived Hoard was an agent of the plaintiff. A. Yes.
“3. If your answer to No. 1 is in the affirmative, was the witness A. V. Wolfe the man? A. Yes.
“4. Do you find that the defendant, Nordgren, was deceived by anyone as to the character of the guaranty signed by him? A. We do, yes.
“5. If your answer to No. 4 is in the affirmative, state whether the person who so deceived Nordgren was an agent of the plaintiff. A. Yes.
“6. If your answer to No. 4 is in the affirmative, was the witness A. V. Wolfe the man? A. Yes.
“7. If you find that any agent of the plaintiff deceived either Hoard or Nordgren in the respects charged, what was said agent’s name? A. A. V. Wolfe. .
“8. Under the circumstances of this case, was it apparent at a glance to anyone signing on the lines indicated for the guarantors, that the document was not a mere recommendation? A. No.”
Plaintiffs filed a motion for new trial, which was denied, and the judgment appealed from was rendered. Plaintiffs waive the motion for new trial, and stand on their demurrer to the evidence and their motion for judgment. Evidence introduced after the demurrer was overruled may have contributed materially to the evidence from which the jury drew its inferences. Therefore the question is whether the motion for judgment should have been sustained. Waiver of the motion for new trial leaves the instructions to the jury, whether correct or incorrect, the law of the case, and the question must be determined in the light of the instructions.
Plaintiffs, whose home office was at Freeport, 111., were distributors of “McNess Sanitary Preparations,” consisting of extracts, toilet goods, liniments, and home remedies. Hartwick, who resided at Anthony, Kan., was a “salesman” who peddled the preparations from a “medicine wagon.” Previous to April 23, 1915, he had been purchasing goods on credit, under a contract similar to the contract sued on. On April 23, 1915, plaintiffs wrote a letter to Hart-wick, stating his account had grown so large a new contract with an extra guarantor or two was desired. The contract and the guaranty which were subsequently signed were inclosed for execution. Hart-wick did not respond. A week or ten days later a man who may be designated as Mr. X appeared at Hartwick’s place of business arid inquired why the new contract had not been filled out. Mr. X had with him a statement of Hartwick’s account with plaintiffs, which was checked over, and he went to Hartwick’s stock room and checked over the stock there. He also had with him other contracts similar to Hartwick’s contract, and some “literature.” The contract under which Hartwick was operating, and the new contract, provided that plaintiffs should furnish blanks, advertising matter, and other printed matter connected with the business of selling the preparations. Hartwick handed the new .contract, which apparently he had signed, to Mr. X, who then took up the subject of procuring guarantors. Hartwick and Mr. X went to see Hoard, and Mr. X induced Hoard to sign as a guarantor. Nordgren was present, and Virgil Croft, who was working for Hoard, was present. Afterwards, Mr. X induced Nordgren to sign as a guarantor. After the signatures of Hoard and Nordgren had been procured, Mr. X gave the instrument to Hartwick, and told him to send it to White for his signature as a guarantor. White resided at Greenville, 111. Hart-wick sent the instrument to White, who signed as guarantor, and returned the instrument to Hartwick, who sent it to the company.
It is clear the jury were authorized to believe that somebody appeared at Hartwick’s place of business on the day the guaranty was signed by Hoard and Nordgren, who knew the contract with guaranty attached which plaintiffs had sent to Hartwick had not been executed and returned to plaintiffs, who had with him a statement of Hartwick’s account with plaintiffs, and papers and printed matter which an agent of the company checking up salemen might possess, who did such business with Hartwick as an agent of the company might do, and who, so far as the evidence disclosed, had no business at Anthony, unless he were an agent of-the company calling upon Hartwick for the purpose of procuring a new contract and guaranty. It is elementary that agency may not be established by proof that a person pretended to be agent of another or acted as such agent. An inference of authority must be derived from facts for which the principal was responsible. The court instructed the jury, however, that it was not necessary agency be established by direct testimony, and that facts and circumstances might be taken into consideration, including possession by the assumed agent of documents belonging to the principal, and including the fact that the assumed agent was in possession of information which he must have received from the principal.
Facts and circumstances are to be considered in the light of human experience, and under the court’s instructions, the jury might reasonably conclude Mr. X could not know Hartwick had failed to forward to plaintiffs, duly executed, a contract with guaranty attached, sent to Hartwick for execution, would not have with him a statement of Hartwick’s account with plaintiffs concerning which execution of the contract and guaranty was desired, and would not have with him other contracts of the same character, unless plaintiffs put him in possession of the information and the documents. This being true, plaintiffs would be responsible for placing Mr. X. in a position which enabled him to present himself to Hartwick as one who, according to experience and business usage, possessed authority from plaintiffs respecting Hartwick’s account, and respecting thé subject about which he was informed. The result being reasonably foreseeable, and Mr. X. having been dealt with as plaintiffs’ agent, plaintiffs would not be in position to deny the agency.
Plaintiffs meet the conclusion just stated by denying the existence of any Mr. X. They say the story of his appearance was a fabrication. If so, Hartwick and Hoard and Nordgren and Croft must have conspired to commit perjury. Whether they did so was a question for the jury. The district court was not authorized to sustain a demurrer to their testimony, or to render judgment for plaintiffs in the face of their testimony.
The evidence favorable to Hoard and Nordgren was that Mr. X procured their signatures by representing the guaranty was merely a recommendation. We are not concerned in this appeal with Mr. X’s authority. The court instructed the jury that, if they found he was plaintiffs’ agent, plaintiffs were bound by his acts and conduct. A contention that the rule announced in Donald-Richard Co. v. Shay, 110 Kan. 351, 203 Pac. 1105, should be applied to Hoard, cannot be sustained. An instruction to the jury made White’s liability depend on liability of Hoard and Nordgren, and as indicated, the instructions are not subject to review.
There was evidence identifying Mr. X with A. V. Wolfe, who was named in the findings of the jury as plaintiffs’ agent. Mr. Furst testified the business of plaintiffs extended over practically all of the central states, including Kansas. A. V. Wolfe was plaintiffs’ field man, whose business consisted in checking up dealers. In 1915, the year the guaranty was signed, Wolfe was the only agent of plaintiffs who did that work. Wolfe'was a witness at the trial, and testified he was not in Kansas in the year 1915. Hartwick testified the Mr. Wolfe in the court room was not the same man as the person who has been designated in this opinion as Mr. X. Hartwick had given testimony at the second trial which identified Wolfe with Mr. X. This testimony was read to him, and was admitted by him to be correct. His testimony is too long to be quoted, and cannot be summarized to present its double aspect of showing that Wolfe and Mr. X were the same person and were different persons. What the testimony proved was a question for the jury. (Acker v. Norman, 72 Kan. 586, 84 Pac. 531.) The court was not authorized to determine the question on motion for judgment.
A slight discrepancy appeared between Wolfe’s testimony at the second trial and his testimony at the last trial. At the last trial he gave some testimony which was flatly contradicted by a witness for defendants. What his demeanor may have been while on the witness stand this court cannot know. It is clear the jury did not believe him. The jury were abundantly justified in believing that some one purporting to be an agent for plaintiffs was present when the contract of guaranty was signed. If any agent of plaintiffs was present, Furst’s testimony made it certain Wolfe was that agent.
Manifestly this court may not declare, as a matter of law, that there was no evidence to go to the jury, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued the defendant to recover $550, alleged to be the balance due on account of defendant’s purchase of a partnership interest in a pool hall from the plaintiff. Judgment was rendered in favor of the plaintiff for $150, and the defendant appeals. The plaintiff has not filed any brief.
The defendant denied the existence of any partnership between himself and the plaintiff, denied that he had purchased from the plaintiff any interest therein, and denied all liability to the plaintiff. The evidence of the plaintiff tended to prove that there was owing to him from the defendant, for the purchase of a one-half interest in the pool hall, the sum of $550. He did not introduce any evidence to establish any liability on the part of the defendant in any other sum whatever. The evidence of -the defendant tended to prove that he had not purchased any interest in the pool hall from the plaintiff, and that he did not owe the plaintiff anything. There was no evidence by the defendant which tended to prove any liability to the plaintiff for any sum whatever. Under these circumstances, the verdict should have been for the plaintiff for'$550, or it should have been for the defendant. There was no evidence on which to base a verdict for $150 for the plaintiff. The defendant filed a motion for a new trial,' which was denied. Under repeated declarations of this court the judgment must be reversed. (Bressler v. McVey, 82 Kan. 341, 108 Pac. 97; Electric Co. v. Brown, 86 Kan. 903, 122 Pac. 1026; Hart v. Garretson Co., 91 Kan. 569, 138 Pac. 595; Smith v. Hanson, 93 Kan. 284, 144 Pac. 226; Hollicke v. Railway Co., 99 Kan. 261, 161 Pac. 594; Brown v. Byers, 115 Kan. 492, 223 Pac. 477; Martin Realty Co. v. Garver, 116 Kan. 689, 229 Pac. 70.)
The judgment is reversed and a new trial is directed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Marion Pinkerton to set aside a deed purporting to convey certain lots to Allie'-Pinkerton and to declare that the title to the lots so conveyed belongs to him.
In his petition he alleged that he and Allie had been husband and wife, each being the owner of real property, and while living in that relation a question arose between them as to the way the individual property of each should descend in case of the death of either; that to meet such a situation it was agreed that each should execute a deed to the other, that the deed should be kept from record, and that upon the death of one the survivor should record the deed to her or him. It is alleged that in pursuance of this agreement the deeds were executed by each to the other on September 9,1921, and the one executed by plaintiff to his wife was filed and recorded on September 13, 1921. He alleges that the recording of this deed was done not only in violation of their agreement, but also for the purpose of cheating and defrauding him. He asked that the deed fraudulently placed on record be declared void and that the title be declared and quieted in him. Besides a general denial, the defendant pleaded that if any cause of action existed it was barred under the two-year statute of limitations where relief is asked on the ground of fraud.
Another defense set forth was that in February, 1924, nearly three years after the deed had been placed of record, a divorce from the defendant was obtained by plaintiff, and that the decree finally settled all property rights existing between them. The decree is set forth in the answer, and its effect is to dissolve the marriage relation absolutely without making any reference to the property rights of the parties, and defendant insists that as no reservation was made and no reference made to property rights the judgment under the law effectually barred any question of property rights. In her cross petition the defendant alleged ownership and right of possession, that possession had been wrongfully taken and held by plaintiff, and she therefore asked recovery of title and possession.
The plaintiff’s reply to the amended answer is practically a demurrer to the defenses named in the amended answer. All he alleges is: “That none of said defenses are valid and they constitute no defense to the action set forth in plaintiff’s amended petition.” The reply to the cross petition is in effect an averment that he was the owner of the property, and always had been entitled to the possession of the same; that defendant committed a fraud' on him by placing the deed on record, and that she has no interest or right in the lots. The cause was submitted to the court upon a motion for judgment on the pleadings, also upon statements then made by counsel in open court. Whereupon the court determined and adjudged that the plaintiff should take nothing by reason of his plaint, but gave judgment for the defendant, awarding title and possession of the property to her.
The plaintiff appeals and his principal complaint is that the court was not warranted in rendering the judgment upon the showing made. It is first said that the question of the delivery of a deed is a question of fact for a jury and not for the decision of a court upon contested allegations; but the plaintiff having conceded that the deed was delivered to defendant, took that question out of controversy. The first defense of the defendant was that the action was barred by the two-year statute of limitations, and it appears to be good. It is charged that the legal title which defendant holds was procured by fraud, and plaintiff asks relief upon the ground of fraud; that being the character of the action, the bar fell in two years. (R. S. 60-306, New v. Smith, 86 Kan. 1, 119 Pac. 380.) While plaintiff alleges that he did not discover the fraud of causing the recording of the deed until after the decree of divorce had been granted, yet the statutory exception that a cause of action shall not accure in such cases until the discovery of the fraud, does not mean actual knowledge of the fraud. Constructive notice derived from a public record is sufficient to start the running of the statute. In the eye of the law plaintiff had notice of the wrong of. which he complains when the deed was placed of record. That was about four years before the present action was brought and more than two years before the divorce action was begun. In that action the relations and rights of the respective parties were necessarily under consideration, and if parties desired an adjustment of those rights that was the time and place to have it done. The exception relating to discovery of the fraud is made on the theory that the fraud has been concealed, but manifestly there was no concealment here, as the deed was recorded four days after it was executed. But in any event there was constructive notice which was sufficient to set the statute in motion. (Black v. Black, 64 Kan. 689, 68 Pac. 622; Rogers v. Richards, 67 Kan. 706, 74 Pac. 255; Walline v. Olson, 84 Kan. 37, 113 Pac. 426; Rogers v. Lindsay, 89 Kan. 180, 131 Pac. 611; Davis v. Heynes, 105 Kan. 75, 181 Pac. 566; Foy v. Greenwade, 111 Kan. 111, 206 Pac. 332.)
Although not necessary to sustain the judgment of affirmance, there is another ground to which defendant has referred and which tends to uphold the judgment for defendant. The decree of divorce which had been mentioned had the effect of settling the property rights of the parties. In the action for divorce matters of alimony and of the division of property were open to consideration, and if any question was to be raised relating to property they should have been presented and adjusted at that time. In Roe v. Roe, 52 Kan. 724, 728, 35 Pac. 808, it was held that when a divorce is granted dissolving the marriage relation any orders with reference to alimony or division of property desired by either party may then be determined, and the court added:
“If they may be so considered and determined, and a party neglects to require such determination, the judgment is as full and complete a bar as if the question had been fully tried and determined.” (See, also, McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546, and cases there cited.)
The judgment is affirmed.
Harvey, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action by certain gas companies which were aggrieved at an order of the public service commission granting to a competing gas company a certificate of convenience under R. S. 66-131 authorizing it to transact business as a public utility.
It appears that in March, 1925, the Wichison Industrial Gas Company, a Delaware corporation, applied to the public service commission for a certificate of convenience permitting it to transact business as a public utility in this state and particularly to supply gas to industrial plants in and about the cities of Wichita and Hutchinson.
As the granting of such certificate and the entrance of the Wichison Industrial Gas Company into the business of supplying gas to industrial plants would encroach on the business of other gas companies serving the same territory, some of these filed written protests against the granting of the certificates applied for by the Wichison Gas Company. These protestants were the Kansas Gas and Electric Company, which operates a gas-distributing system in southern Kansas, including Wichita and Hutchinson, and has its principal sources of supply in Oklahoma; the Cities Service Company, whose interest in the matter was not clearly defined; and the Wichita Gas Company and the Hutchinson Gas Company, which are the local distributing companies of Wichita and Hutchinson, respectively.
The public service commission set the application for hearing at Wichita May 5, 1925, at which time evidence pro and con was heard, and thereafter on June 8, 1925, the commission made a finding that public convenience would be promoted by granting the certificate prayed for and by permitting the applicant, the Wichison Industrial Gas Company, to transact the business of a public utility in the sale of industrial gas in the cities of Wichita and Hutchinson and environs, and the certificate was issued accordingly.
Within thirty days thereafter the protesting companies commenced this action against the public service commission, setting up the foregoing and other more or less pertinent facts in detail and alleging that the order of the commission was arbitrary, unlawful and unreasonable, “for the reason that no evidence whatever was introduced before said commission which would justify or support its order or finding.” Plaintiffs prayed that the order of the commission granting a certificate of convenience issued to the Wichison Industrial Gas Company should be set aside and the commission and the Wichison Industrial Gas Company enjoined from putting the order into effect.
The Wichison Industrial Gas Company was made a party defendant on its own motion. Thereafter defendants’ -motions to strike out parts of plaintiffs’ petition were sustained in certain particulars. About the time this ruling was made the Kansas Gas and Electric Company and the Cities Service Company on their own motion were dismissed from the action, and it proceeded with the local distributing companies of Wichita and Hutchinson maintaining the cause of the plaintiffs.
The Wichison Industrial Gas Company and the public service commission filed separate demurrers to plaintiffs’ petition as amended pursuant to the court’s ruling on the motions to strike. The demurrers urged:
“1. That the plaintiffs, nor either of them, have legal capacity to sue and maintain this action.
“3. That the petition does not state facts sufficient to constitute a cause of action against this defendant, or entitle the plaintiffs, or either of them, to the relief prayed for.”
The demurrers were sustained, and the case is here for review.
The arguments in the briefs of counsel cover a broad and interesting field which the demands upon our time will not permit us to explore. In support of the trial court’s decision, counsel for the defendants make rather too much of the point that these plaintiffs cannot be heard to question the propriety of the order of the commission. In an ordinary lawsuit, it is quite correct that to qualify as a litigant a party to an action must possess a legal entity, be without disability, and have a direct legal or equitable interest in the result of the litigation. Under the public utilities act the right to participate in hearings before the commission and to bring proceedings to review or correct its action or inaction in a given case is not so restricted. Any person or group of persons, organized or un organized, whose interests may be somewhat remote but which ought to be considered before any proposed action by the commission is taken, have a right to participate in the proceedings before that tribunal. The statute says any mercantile, agricultural or manufacturing organization or society, and body politic, any taxpayer, firm, .corporation, or association, may air its grievances before the commission. (R. S. 66-111.) And the right thereto means more than that of mere sufferance to be permitted to protest against some action contemplated by the commission and which the commission intends to take regardless of any and all objections of such parties. The public utilities act intends that such parties shall not only be heard but that their interest shall be taken into account for whatever relative merit it may have, before the commission reaches a conclusion on the matter before it for determination. This must be the legislative intent, otherwise of what avail is the conferring of the right upon private persons, chambers of commerce, labor organizations and the like to be present at hearings before the commission (R. S. 66-106), to complain to the commission of matters of public or personal concern relating to utility services and their incidents (R. S. 66-111) and to appeal from orders of the commission at which they have a substantial grievance. (R. S. 66-118; The State, ex rel., v. Mohler, 98 Kan. 465, 472, 158 Pac. 408; Jackman v. Public Service Commission, 121 Kan. 141, 245 Pac. 1047, and citations.) And in the particular case before us, where the commission exercises its lawful supervision over the business of plaintiffs, controls their stock and bond issues, exacts from them a prescribed quantum of service and efficiency, and practically dictates their rates and limits their profits, and where without the express sanction of the commission and its certificate of convenience plaintiffs would have no right to conduct their corporate affairs, it is certainly a reasonable interpretation of the act to say that plaintiffs had a right to be heard and to have their interests consulted before a certificate of convenience was granted to another corporation proposing to enter their field of activity with the avowed intention of capturing part of plaintiffs’ business, the supplying of gas to industrial plants in Wichita and Hutchinson. In years agone, when competition was the rule, “with the race to the swift and the devil take the hindermost,” a public service corporation established its plant, invested its capital, and investors put their savings in its stocks and bonds with their eyes open, knowing the possibility of their investments being rendered unprofitable by the intrusion of competitors in the same field. But they also had the allurement of possible large profits to stimulate their enterprise and to justify their speculative investments. Nowadays public service companies and their stock- and bondholders proceed on a different theory, which has for its basis their confidence in a fair and just administration of the public utilities act. This act while greatly restricting freedom of corporate action is designed among other purposes to give a measure of security against ruinous competition to prudent investments of public service corporations which give the public reasonably efficient and sufficient service. The very enactment of the statute (R. S. 66-131) forbidding a public utility corporation to transact business without a certificate that the public convenience would be promoted thereby, was manifestly intended to put reasonable limitations to the evils attendant on unnecessary duplication of public utilities (Janicke v. Telephone Co., 96 Kan. 309, 150 Pac. 633). Its text fairly indicates that unnecessary duplication and ruinous competition are to be avoided, and the power of granting or withholding certificates of convenience is to be exercised with sagacious discretion, not with indifference to legitimate interests likely to be affected by the determination of the official body to whom this important power has been intrusted. (Jackman v. Public Service Commission, supra.) In determining whether such certificate of convenience should be granted, the public convenience ought to be the commission’s primary concern, the interest of public utility companies already serving the territory secondary; and the desires and solicitations of the applicant a relatively minor consideration.
In People, ex rel. N. Y. C., etc., Co. v. P. S. Com., 195 N. Y. 157, where the right of an established railway company to challenge the validity of an order of the New York public service commission granting a certificate of convenience and necessity to a competitor to enter the same territory was called in question, the court of appeals held:
“A certificate of public convenience and necessity is to be granted a railroad company upon considerations, not alone bearing upon the convenience of the public, but affecting other transportation companies which are already serving the territory; hence, a transportation company, so interested, is a party aggrieved by the granting of such a certificate, and as such has an interest in the controversy.” (Syl.)
To the same effect was Choate v. Commerce Commission, 309 Ill. 248.
Appellees cite the case of Telephone Co. v. Telephone Association, 94 Kan. 159, 146 Pac. 324, to support its contention that plaintiffs cannot complain of the action and order of the public utilities commission no matter how arbitrary that action and order might be. The cases are not alike. In the Telephone case, plaintiff completely ignored the fact that the doors of the commission were open to hear and redress all grievances within its jurisdiction, and that the commission had an attorney of its own, with the services of the attorney-general also available, to question the exercise of unauthorized power by a public utility. See State, ex rel. John Marshall, as Attorney for the Public Utilities Commission, v. Gas Co., 88 Kan. 165, 127 Pac. 639. The telephone company sought to take on itself the functions of a prosecuting officer, and of course it could not maintain that action. (City of Parsons v. Water Supply & Power Co., 104 Kan. 294, 178 Pac. 438, syl. ¶ 3, and citations.) Here, however, the plaintiffs took the proper course. They presented their cause to the commission, and feeling dissatisfied with its decision which unquestionably did affect their interest, they invoked their right to a review of that order in conformity with the statute. (R. S. 66-118.)
The court holds that plaintiffs had the right to be heard before the commission and to have their interests duly considered before a certificate of convenience was granted to a competitor in their particular field of service; and being aggrieved by the order of the commission plaintiffs also had the right to seek judicial relief therefrom by instituting an action pleading sufficient facts to show, if proven, that the order was arbitrary, unlawful and unreasonable.
But the allegation in plaintiffs’ petition that the order of the commission was arbitrary, unlawful and unreasonable is merely the pleader’s conclusion of law, and not a statement of facts on which a cause of action may be founded. (Ollis v. Orr, 6 Ida. 474; Murphy v. C. R. I. & P. Ry. Co., 247 Ill. 614; Schwab v. Mabley, 47 Mich. 572; Carlson v. County Com’rs, 38 Wash. 616, 617; Pratt and others v. Lincoln County and another, 61 Wis. 62; Ricketts v. Crewdson, 13 Wyo. 284.) Plaintiffs alleged the order was arbitrary, unlawful and unreasonable “for the reason that no evidence whatever was introduced before said commission which would justify or support its order or finding.” Elsewhere, however, the petition alleged—
“That on the 5th day of May, 1925, a hearing was had before said defendants, the commission, in the city of Wichita, Kan., at which tim.e evidence was introduced by said Wichison Company in support of its said petition, and by these plaintiffs in opposition thereto, and said hearing was closed and the matter taken under advisement by the commission.”
Manifestly, then, plaintiffs’ allegation that the order was arbitrary, unlawful and unreasonable was not only a mere conclusion of the pleader but a paralogism as well. And since the commission held a public hearing, at which time and place plaintiffs’ evidence in opposition to the proposed order was heard, as well as evidence introduced in its support, the plaintiffs’ case must fail. The discretionary power of the commission to grant or withhold certificates of convenience to public utility companies is broader than its power to govern rates and services of such companies. In the exercise of the latter powers the lawful scope of the commission’s orders is hedged about by statutory and constitutional guaranties and inhibitions. In the granting or withholding of certificates of convenience no justiciable question touching confiscation of property or impairment of vested rights can well arise. Time and again this court, in consonance with the prevailing attitude of courts throughout the country, has declared that it will not substitute its judgment for that of some administrative tribunal created by legislative authority for dealing with matters of nonjudicial character; and certainly the question whether a competing gas company should be licensed to serve industrial plants in and around Wichita and Hutchinson is pecularly a question for an official board to determine and one with which a judicial tribunal should be slow to meddle.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs seek to enjoin the defendants from paving a street in the city of Cherryvale. Judgment was rendered in favor of the defendants on their demurrer to the evidence of the plaintiffs, who appeal.
The evidence on the question presented by the plaintiffs is that the engineer employed by the city made an estimate of the cost of the improvement and filed that estimate three days before the letting of the contract for the improvement; that bids were advertised for, were received, were opened, and were tabulated; that after the bids were received the engineer stated that his estimate was a little too low on the type of pavement afterwards contracted for, because he had left out an element of the cost of making the improvement, which element should have been included in his estimate; that he suggested the estimate be raised, which he did; and that the minutes of the board of commissioners showed the following:
“Motion made by Commissioner Hoffman that the engineer raise his estimate on native lake asphalt on a macadam base. Motion seconded by Commissioner Welte. Motion earned.”
The evidence further showed that after the estimate had been raised, a contract was entered into between the city and the defendant, C. F. Brindle, who was the lowest bidder. It is contended by the appellants that raising the estimate of the engineer after the bids were received and before the contract was let destroyed competition in the bidding and rendered the contract illegal. No other question is presented concerning the validity of the proceedings for the improvement.
Section 14-440, which governs cities of the second class, reads:
“Before the city council shall make any contract for building bridges or sidewalks or for any work on streets, or for any other work or improvement, an estimate of the cost thereof shall be made by the city engineer and submitted to the council; and no contract shall be entered into for any work or improvement for a price exceeding such estimate.”
Cherryvale is a city of the second class. No statute has been cited and the court has been unable to find any which requires cities of the second class to advertise for bids or to let contracts for street improvements on competitive bidding or to the lowest responsible bidder. The plaintiffs cite that part of section 13-1017 relating to cities of the first class, which reads:
“If no responsible person shall propose to enter into the contract at a price not exceeding the estimated cost, all bids shall be rejected and the same proceedings as before repeated until some responsible person by sealed proposal shall offer to contract for the work at a price not exceeding the estimated cost.”
The statute from which this language is taken requires cities of the first class, in letting contracts for street improvements which cost more than one thousand dollars, to advertise for sealed bids and to let the contract to the lowest responsible bidder.
The plaintiffs say that this statute has been construed by this court to apply to cities of the second class, and that the following language taken from Warner v. City of Independence, 121 Kan. 551, 557, supports their contention:
“Specifications must be framed to permit free and full competition, and that the public officials, after selecting the lowest and most responsible bidder, may not enter into a contract with him by yielding substantial concessions beneficial to him which were not included in or contemplated in the terms and specifications upon which bids were invited.”
That case concerned a city of the first class operating under a statute which requires cities, acting in conjunction with the board of county commissioners of the county, in improving streets and public roads to advertise for bids for the work to be done and to let the contract to the lowest responsible bidder. (R. S. 12-651.)
Section 14-440 of the Revised Statutes requires an estimate to be made before a city council of a city of the second class shall make any contract for any work on streets, but does not require an estimate to be made before the city shall advertise for bids, and does not require that the city shall advertise for bids for the work to be done, nor that the contract therefor must be let to the lowest responsible bidder. An estimate in the present case was made before the contract was entered into. There was an error in the estimate; that error was corrected by raising the estimate, and the contract was then entered into. The city did not act without authority nor in violation of law.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, the administratrix of the estate of Maria Kuns, deceased, sued to recover $2,000 and interest thereon, which she alleged belonged to Maria Kuns and which had been by the defendants converted to their own use. Judgment was rendered in favor of the defendants on their demurrer to the evidence of the plaintiff, and the plaintiff appeals.
The plaintiff alleged that $4,000 had been deposited in the defendant bank to the account of Maria Kuns and that the defendants converted the $4,000 to their own use and refused to pay any part of it to the plaintiff except $2,000, which was paid in January, 1923. In their answer the defendants denied all the allegations of the petition and pleaded the two- and three-year statute of limitations. To that answer the plaintiff replied and set up a detailed statement of transactions between Maria Kuns and the bank by which she deposited the $4,000 in the bank and for which a certificate of deposit was issued to her. The reply further alleged that afterward the defendant bank sold to Maria Kuns a note for $4,000 secured by a mortgage on real property for which note Maria Kuns delivered to the bank the certificate of deposit that had been issued to her. The- reply in detailed allegations alleged that Maria Kuns was induced to take the $4,000 note by the fraudulent representations of the defendant. The defendants then filed an amended answer, which contained the following:
“For a further and second defense to the petition of plaintiff the defendants admit that on or about the first' day of March, 1921, one R. H. Lingle paid to t}ie defendant bank for Maria Kuns, deceased, the sum of $4,100, and as a part of said admission that the said defendant bank duly executed on said day its time certificate of deposit for the sum of $4,100 payable to the order of said Maria Kuns, bearing four per cent interest and due in six months, and placed the same in the box of the said Maria Kuns in said defendant bank.”
The amended answer then alleged in detail the circumstances surrounding the transaction in which Maria Kuns became the owner of the $4,000 note. The amended answer alleged that the makers of the'$4,000 note at various times, concluding on January 2, 1923, paid interest thereon amounting in all to $556.57. The amended answer also alleged that the makers of the note paid on January 2, 1923, the sum of $1,000 and on January 8, 1923, another $1,000. The amended answer, concerning the sale of the note and mortgage to Maria Kuns, alleged that:
“The said Maria Kuns by and through her daughter and duly authorized agent, Effa Sharpe, purchased the said note and mortgage for the sum of $4,000 and the said note was thereupon duly indorsed by said defendant bank to the said Maria Kuns and the same and the said mortgage were duly transferred and delivered to the-said Maria Kuns and the said time certificate of deposit for $4,100 was thereupon duly indorsed, canceled and cashed by the said defendant bank and 14,00o1 of the proceeds thereof paid over and transferred to the said bank and the remaining $100 of the proceeds thereof deposited and credited in the checking account of the said Maria Kuns in the said bank, and thereupon the said note and mortgage with interest from March 1, 1921, became and was the property of the said Maria Kuns and the said $4,000 then became and was the property of the defendant bank.”
The amended answer also pleaded the statute of limitations.
The evidence introduced by the plaintiff, as shown by the abstract, was as follows:
“Q. Your name is D. F. Kuns? A. Yes, sir.
■ “Q. President of the Farmers & Merchants Bank? A. Yes, sir.
“Q. Have you the certificate of deposit issued to Mrs. Maria A. Kuns in March, 1921? A. Yes, sir.
“Q. Let me see it, please. (Witness produces paper, which is by the court reporter marked Exhibit ‘1.’)
“Q. This is the certificate of deposit issued by that bank to Maria A. Kuns on March 1, 1921, for $4,100? A. Yes, sir.
“Q. Indorsed on the back, ‘Maria A. Runs, D. F. R.’ Who wrote that indorsement on there? A. I did.
“Q. You did? A. Yes, sir.
“By Mr. Smith: That is all. We offer in evidence Exhibit ‘1.’
“Exhibit T.’
“Farmers and Merchants Bank. No. 7279.
McPherson, Ransas, March 1, 1921. $4,100.
Certifícate of Deposit.
Not subject to check.
“R. H. Lingle has deposited in this bank, Far. & Mér. Bank, McP, $4,100 and 00 Cts. Dollars, payable to the order of Maria A. Runs on the return of this certificate properly indorsed. 4 per cent interest per annum allowed if left one year. 4 per cent interest per annum allowed if left six months. No interest after maturity. J. W. Ingram, Cashier.
“Paid Mar. 29, 1921. Farmers & Merchants Bank, McPherson, Ransas.
(Indorsement.) Maria A. Runs, D. F. R.”
To that evidence the demurrer of the defendants was sustained.
For the purpose of determining whether or not the demurrer should have been sustained it is necessary to consider the admissions contained in the amended answer. The evidence introduced showed that the certificate of deposit had been cashed. The amended answer admitted that the money for the certificate had been received by the defendants. That made a prima facie case for the plaintiff. It was then incumbent on the defendants to prove that the note and mortgage had been sold to the plaintiff and that the money arising from the certificate of deposit had been turned over to the bank to pay for the note and mortgage. It was error to sustain the demurrer to the evidence of the plaintiff.
The judgment is reversed, and a new trial is directed. | [
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The opinion of the court was delivered by
Harvey, J.;
This is an action in ejectment and for the partition • of real property and for rents and profits. It was tried to the court. Judgment was rendered for the plaintiff, and the defendant has appealed.
All parties claim through Andrew D. Shaw, who in 1872 and for several years prior thereto owned and with his family resided upon all that part of the west half of section 20, township 9, range 10 east, lying north of Rock Creek, in Pottawatomie county, Kansas, and containing approximately 170 acres. Andrew D. Shaw died intestate April 5, 1872, and left surviving him his widow, Henrietta Shaw, and six minor children. The land was partitioned in the probate court in 1875, and to the widow was set off the west half of the tract, about 85 acres, and to the children collectively the east half of the tract, and that action is not questioned in this case. Henrietta Shaw sold to Patrick Sullivan the west 50 acres of the west 85-acre tract. In 1884 Armer P. Shaw, the oldest son, conveyed to his mother, Henrietta Shaw, his undivided one-sixth interest in the east 85-acre tract. He died later intestate and without issue. In 1886 Elizabeth Fowler, a daughter, conveyed to her mother, Henrietta Shaw, her undivided one-sixth interest in the east 85-acre tract. At the same time Henrietta Shaw conveyed to Elizabeth Fowler 15 acres directly east and adjoining the 50-acre tract she had previously sold to Patrick Sullivan. In 1886 John W. Shaw, one of the sons, married and brought his wife to live in the home with Henrietta Shaw. About the same time Grant Shaw, the other son, left home. The other two daughters were then minors and continued to live at the home for some time. Some time later John W. Shaw purchased the undivided one-sixth interest in the east 85-acre tract from Grant Shaw and from the two younger sisters. He also purchased from Elizabeth Fowler the 15 acres conveyed to her by Henrietta Shaw in the west 85-acre tract. Henrietta Shaw and John W. Shaw and his wife and family continued to live on ' the premises until 1922, when Henrietta Shaw died intestate. At the time of her death the records showed Henrietta Shaw to be the owner in fee of the east about 20 acres of the west 85-acre tract, and of an undivided two-sixths interest in the east 85-acre tract, and showed John W. Shaw to be the owner of an undivided four-sixths interest in the east 85 acre tract and the owner in fee of the 15 acres which Henrietta Shaw had conveyed to Elizabeth Fowler in 1886. Thereafter, and in January, 1925, the four living children of Henrietta Shaw other than John W. Shaw, namely, Mary Shaw (Dodgion), Elizabeth Shaw (Fowler), Laura B. Shaw (Crouch), and Grant Shaw, by their respective quitclaim deeds, conveyed to the plaintiff, Dellno Shaw (a son of John W. Shaw), all their right, title and interest in and to the east 85-acre tract and the east about 20 acres of the west 85-acre tract. Plaintiff claims an interest in the land by virtue of these deeds.
In May, 1895, John W. Shaw and wife and Henrietta Shaw mortgaged the east 85-acre tract to S. S. Pearson for $1,000, which mortgage was later released of record. In March, 1906, John W. Shaw and wife mortgaged the east 85-arce tract, and also the east about 20 acres of the west 85-acre tract, to S. S. Pearson for $1,500, which mortgage was later released of record. In 1910 John W. Shaw and wife gave a mortgage on the east 85-acre tract and upon the east about 35 acres of the west 85-acre tract and upon some lots in the city of Louisville to the Farmers State Bank of Wamego for $10,000, which mortgage was later released. In November, 1916, John W. Shaw and wife gave a mortgage to E. V. Pearson for $6,000 on the east 85-acre tract and the east about 35 acres of the west 85-acre tract and certain lots in Louisville. This mortgage was later assigned to Josephine Bandel, defendant herein. At the same time, and covering the same land, a commission mortgage of $300 was given to E. Y. Pearson. In April, 1917, John W. Shaw and wife gave a mortgage on the east 85-acre tract and the east about 35 acres of the west 85-acre tract to J. W. Arnold for $7,511. This mortgage was assigned to Josephine Bandel and Emma Plesse, who in May, 1920, brought an action to foreclose the same against John W. Shaw and wife. Judgment was rendered against defendants for the sum due and decreeing the foreclosure of the mortgage. The land was sold at sheriff’s sale and bought by Josephine Bandel, and in default of redemption a sheriff’s deed was issued to her, which was duly recorded. Josephine Bandel went into possession of the property February 20, 1925, by virtue of such sheriff’s deed. In September, 1923, Josephine Bandel brought an action to foreclose the $6,000 which had been assigned to her by E. Y. Pearson. This action went to judgment, but there has been no sale of the property thereunder. In some manner, unexplained, all of the land described in the mortgages last mentioned got on the tax roll in the name of John W. Shaw, and for many years the tax records show that he paid the taxes thereon.
At the time this action was brought the defendant, Josephine Bandel, was in possession of the real property sought to be parti tioned, claiming full title thereto under and by virtue of the sheriff’s deed above mentioned. The trial court found that the plaintiff, Dellno Shaw, is the owner of an undivided four-fifths of the east about 20 acres of the west 85-acre tract, and that he is the owner of an undivided four-fifteenths of the east 85-acre tract, and rendered judgment accordingly.
The defendant appealed, and contends that under the evidence the court should have found that John W. Shaw had full title to the real property described in the mortgage which was foreclosed. While appellant concedes that the records of the probate court and of the register of deeds disclosed the title to be as found by the court, it is contended that the evidence shows that John W. Shaw had obtained full title to the property as against Henrietta Shaw and those claiming under her by adverse possession. This contention cannot be sustained.
The general rule is that adverse possession of real property, of the character to ripen into title, must be actual, visible, exclusive, hostile, and continual during the time necessary to create a bar under the statute of limitations, which in this state is fifteen years (R. S. 60-304, 4th clause). Whenever any of these elements is lacking no title by adverse possession can ripen. (2 C. J. 50, 119, 120; 1 R. C. L. 686, 701, 702; Missouri River F. S. & G. R. Co. v. Owen, 8 Kan. 410; Broughan v. Broughan, 10 Kan. App. 575, 61 Pac. 842; 62 Kan. 724, 64 Pac. 608; Dickinson v. Bales, 59 Kan. 224, 52 Pac. 447; Finn v. Alexander, 102 Kan. 607, 171 Pac. 602.)
Here the possession of John W. Shaw was not exclusive. When he married, in 1886, he brought his wife to the home of his mother, Henrietta Shaw. Together they occupied the premises until her death in 1922. Neither does the evidence show that his possession was hostile to hers, but rather shows that their possession was joint and harmonious. He farmed or managed the place, rented part of it to tenants some years, and perhaps rented all of it some years, collected the rents, paid the taxes and gave part of the proceeds to his mother. Just what part of the proceeds he gave to his mother is not clear from the evidence; perhaps it was not the same each year. But the share of income received by her was a matter between a mother and her son, and if satisfactory to them the defendant here.cannot complain of it. Ordinarily when joint owners of property jointly occupy it harmoniously, neither of them can contend that his possession is adverse to that of the other. (Squires v. Clark, 17 Kan. 84; Schoonover v. Tyner, 72 Kan. 475, 84 Pac. 124; Cribb v. Hudson, 99 Kan. 65, 160 Pac. 1019; Vonfeldt v. Schneidewind, 109 Kan. 265, 198 Pac. 958.)
The payment of taxes by John W. Shaw, and he and his wife executing mortgages thereon, as owners in fee,'evidence a claim of ownership of the land on his part, and these facts are proper to be considered by the court, together with all of the other facts and circumstances pertaining to the possession of the premises as disclosed by the evidence, but of necessity they are not conclusive upon the question of actual or exclusive possession, for, one may pay taxes on land and mortgage it as owner when he has no actual possession of it — even when the‘actual possession is held adverse to him by another. See authorities, supra.
It was not error for the court to hold that John W. Shaw did not, by adverse possession, acquire full title to the real property in controversy as against his mother, Henrietta Shaw. The sheriff’s deed to defendant conveyed only the interest of John W. Shaw and his wife. (Culp v. Kiene, 101 Kan. 511, 168 Pac. 1097.)
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to recover $1,495, part of the purchase price paid to the defendants for a new Lexington Lark touring automobile, the car sold having been represented to be a new car when in fact it was a used car. Judgment was rendered in favor of the plaintiff for $2,200.66.
1. Complaint is made of evidence introduced for the purpose of proving the car sold was a used car instead of a new one. That evidence consisted of testimony given by witnesses to show the condition of the car at various periods of time after it was purchased by the plaintiff, and to show the cost of making repairs on it. The condition was such as would be found in a used and repaired car and not in a new one. That testimony covered a number of parts of the car, and was all competent for the purpose of showing that the car was a used car and not a new one.
2. Nelson, the vice president and sales manager of the defendant, as a witness in its behalf, testified to certain matters. He was asked as to his testimony on a former trial concerning a certain matter and in response testified that he did not remember the testimony concerning which he was then being examined. For the purpose of impeaching the witness Nelson, the court reporter was permitted to testify concerning the testimony of the witness on the former trial. The attempted impeachment of the witness may have been improper, but it cannot be said that it was so erroneous as to justify a reversal of the judgment under section 60-3317 of the Revised Statutes. The error, if there was any, was not materially prejudicial to the rights of the defendant. Judgments are not reversed for immaterial errors. (Palmer v. Meiners, 17 Kan. 478; Moon v. Helfers, 25 Kan. 139; B. K. & S. W. Rld. Co. v. Grimes, 38 Kan. 241, 16 Pac. 472; Parker v. Richolson, 46 Kan. 283, 26 Pac. 729; State v. Woodruff, 47 Kan. 151, 27 Pac. 842, 854; Rich v. Cattle Co., 48 Kan. 197, 29 Pac. 466.)
3. Complaint is made of the exclusion of the petition when offered in evidence by the defendant. The petition was before the court for all purposes, and it was not necessary to introduce it in evidence. It was set out in the instructions to the jury. Its exclusion, when formally offered to be introduced in evidence on the trial, was not prejudicial error.
4. The court instructed the jury that if a verdict was returned for the plaintiff, interest should be included in the verdict. That was done, and of that the defendant complains. He cites authorities which hold that interest cannot be recovered in an action for unliquidated damages. The distinction between the cases cited by the defendant and the present one is this: In the case cited by the defendant, the unliquidated damages were for injuries which did not benefit the estate of the tort-feasor. Here the defendant was benefited by the fraudulent representations concerning the condition of the car. The defendant received the purchase price of a new car and sold one of much less value. The defendant received the money and should pay interest on what it wrongfully received.
In Ellsworth v. Trinkle, 96 Kan. 666, 153 Pac. 543, the court said:
“The law implies a promise immediately to repay money wrongfully obtained, and in an action to recover the price of shares of corporate stock which the plaintiff was induced to buy through the defendant’s fraud interest is properly allowed by way of damages for retention of the money during the time the defendant had the use of it.” (Syl. ¶ 2. See, also, Smith Bros. v. Hanson, 106 Kan. 32, 38, 187 Pac. 262; Shriver v. National Bank et al., 117 Kan. 638, 232 Pac. 1062; and 33 C. J. 203.)
5. The action was tried by a jury, which answered special questions as follows:
“1. Was the Lark model Lexington car a secondhand or used car at the time it was sold and delivered to plaintiff by defendant? A. Yes.
“2. Was the car which was sold by the Howard Motors Company to Thompson, namely, Lexington Lark car No. 25,735, motor No. 1888, shipped on or about July 18, 1921, by the Lexington Motor Company at Connorsville? A. No.
“3. What was the value of the Lark model Lexington car at the time it was sold and delivered to plaintiff by defendant? A. $1,200.
“4. What was the value of a new and unused Lark model Lexington car of the type and style purchased by plaintiff at Kansas City, Mo., on October 12, 1921? A. $2,995.”
The defendant moved to set aside the answers to questions 1, 2 and 4, for the reason that they were contrary to and not supported by evidence. There was abundant evidence from which questions 1, 2 and 4 could have been answered contrary to the way in which they were answered, but there was evidence which supported the answers to each of those questions as returned by the jury. On the answer to the first and second questions, there was evidence which tended to show that the car had old and other makes of parts in it; that it rattled and was loose; and that parts in it, when afterward examined, were bent; and that other parts were broken — a condition of things which could not exist in a new car. The defendant introduced evidence which tended to prove that the car left the factory only a short time before it was purchased by the defendant, but that evidence was contradicted by the evidence which tended to prove the condition of the car.
Concerning the answer to the fourth question, there was evidence which tended to prove that the retail price of a new car like the one that was purchased was $2,995. It was not error to deny the motion to set aside the answers to questions 1, 2 and 4.
6. It is urged that the verdict was excessive. The petition asked for judgment for $1,495. It is alleged that the value of the car purchased was $1,500. There was evidence which tended to prove that .its value was one-half that amount. The jury found that value to be $1,200. On the request of the plaintiff, he was permitted to amend his petition by interlineation so as to allege that the value of the car purchased was $1,200 instead of $1,500, and to ask judgment for $1,795 instead of $1,495. It was within the discretion of the trial court to permit those amendments. (R. S. 60-759; Fitzgerald v. Hollan, 44 Kan. 499, 24 Pac. 957; Deter v. Jackson, 76 Kan. 568, 92 Pac. 546; Bank v. Lowe, 91 Kan. 338, 137 Pac. 930; Wait v. McKibben, 92 Kan. 394, 140 Pac. 860.) This court, to uphold the verdict and judgment, might have considered the amendments as having been made. (Organ Co. v. Lasley, 40 Kan. 521, 20 Pac. 228; Manufacturing Co. v. Boyle, 46 Kan. 202, 206, 26 Pac. 498; Tipton v. Warner, 47 Kan. 606, 28 Pac. 712; Loper v. The State, 48 Kan. 540, 550, 29 Pac. 687.)
7. The defendant urges misconduct of the plaintiff as ground for a new trial. Part of this misconduct consisted of repeatedly asking witnesses who were agents of the defendant if they had not been in the habit of selling used cars for new ones, after an order excluding the evidence had been made by the court. If the plaintiff’s allegations were true, a fraud had been practiced on him by the defendant and by its agents.
In McCauley v. Custer, 93 Kan. 27, 143 Pac. 489, this court said:
“Where one claims to be injured by a contract procured through fraudu lent representations, it is competent to show that the same party made like representations about the same time to other parties with whom such party was attempting to make similar contracts, as tending to show motive or intent.” (See, also, 22 C. J. 746 ; 27 C. J. 60.)
This principle has been also applied in criminal actions; State v. Ridgway, 108 Kan. 734, 197 Pac. 199; State v. King, 111 Kan. 140, 206 Pac. 883; State v. Bisagno, 121 Kan. 186, 246 Pac. 1001.
The plaintiff’s efforts to get this matter to the jury will not justify a reversal of the judgment.
8. Another act of misconduct urged by the defendant occurred on.the argument to the jury. This matter has been examined. The record discloses that the trial was a hotly contested one. In almost all hotly contested trials, counsel do and say things which they ought not do or say, but judgments are not reversed for all acts of misconduct. It is only such misconduct as is prejudicial that will cause a reversal of a judgment. This court is not warranted in reversing the judgment for the conduct of counsel for the plaintiff in his argument to the jury.
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The opinion of the court was delivered by
Burch, J.:
The action was one by a servant to recover damages from his master for personal injuries sustained on account of a defect in a platform on which the servant was required to work. Plaintiff recovered, and defendants appeal.
The petition alleged defendants employed plaintiff to work as a tool dresser about a drilling rig which defendants were operating; defendants constructed a platform about the well which was drilling and alongside the rig; a shed built over the platform prevented use of a crane in moving heavy tools, and it was necessary to roll such tools over the platform to remove them from the well; and while removing a heavy tool, under direction of defendants, the planks of the platform, not being securely fastened to their supports, shifted, and caused plaintiff’s injuries, which were described.
The petition stated a cause of action as against defendants’ general demurrer. Until the contrary appears, it is the duty of the master to furnish the place where the servant works; the defect in the place being one of construction, it was not necessary to allege notice to defendants; and the petition charged the insecure con struction caused plaintiff’s injury. Besides that, defendants were fully apprised of the nature of plaintiff’s claim, and now that the case has been tried and all the facts have been developed, imperfections in the statement of plaintiff’s claim have become inconsequential.
When the rig was set up and the platform was built, the crew consisted of Maddux, who was foreman, Barker, Cusick, and plaintiff. The men knew what to do, and no special assignment of tasks was necessary or was made. Barker and Cusick built the platform with such material as defendants furnished. The jury returned the following special findings of fact, which are not contested:
“Q. 1. Were the defendants guilty of any negligence toward the plaintiff? A. Yes.
“Q. 2. If you answer the foregoing question in the affirmative, then state fully of what such negligence consisted. A. Nails too small were used in construction of walk.
“Q. 3. Prior to the time of plaintiff’s injury, did the defendants or anyone acting for them have any notice or knowledge of the defective condition of the floor or platform in question? A. Yes, the man that drove the nails.
“Q. 4. If you answer the above question in the affirmative, then state what notice or knowledge they had. A. He knew that the nails were too small, and the proper nails were not furnished.
“Q. 5. Did the plaintiff assist in the building of the walk in question? A. No.
“Q. 6. Were the parties who built' the walk in question experienced in such work and competent to build such walk? A. Yes.
“Q. 7. Did the plaintiff, at the time of the injury complained of, know of the condition of the walk or platform in question? A. No.
“Q. 8. Did the plaintiff know, or in the use of ordinary care should he have known, the risks and dangers which he would normally and necessarily encounter in working on the walk in question upon which he was injured? A. Yes; he knew the risks he was taking, assuming the walk to be properly constructed.
“Q.9. Was the injury received by the plaintiff due to his accidentally slipping while lifting upon or moving a drilling bit? A. Only as the board slipped.
“Q. 10. Was the plaintiff careless or negligent in performing his work or his duties at the time of his injury? A. No.”
Defendants invoke the rule that when workmen build their own scaffolding, platforms and runways, the master is not liable for consequences of defects in construction. Authorities are cited. The rule is sound, but in every one of the cited authorities the condition is attached that, if the master furnish the material he must furnish proper material. In this instance defendants furnished the material to build the platform, and the nails were not of proper size.
The fellow-servant rule is invoked. That rule does not apply because the failure to furnish proper material constituted breach of an absolute duty of the master. It is said plaintiff assumed the risk because he used the platform for number of days before he was injured. He was ignorant of the manner in which the platform was constructed.
The court refused to permit one of defendants to testify he did not know there was a loose board in the walk, and had no notice of the fact. Defendants are not permitted to deny notice of defects in construction resulting from failure to furnish proper material.-
Assignments of error are predicated on the giving and refusing of instructions to the jury. The facts which determine liability are found in detail, and it is not now material what rules the court gave to enable the jury to appraise liability.
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The opinion of the court was delivered by
Dawson, J.:
This was an action by an employee against his employers for damages on account of injuries sustained in being flung from a trailer attached to a motor truck which plaintiff’s fellow-servant negligently drove around a street corner at excessive speed.
The defense pleaded was that defendants were operating a factory in which more than sixty employees were employed; that plaintiff and defendants were operating under the workmen’s compensation act; that promptly after the alleged injuries of plaintiff were sustained they began to make bimonthly payments of $19.80 to plaintiff, such amounts being 60 per cent of his average weekly wages as prescribed by the. compensation act. Defendants made such payments on March 6, April 3, April 20, May 7, and May 23, and avowed their willingness to continue them so long as liability therefor might attach to them by virtue of the compensation act. Defendants also alleged that they had paid doctors’ and medical bills incurred in the care and treatment of plaintiff in the total sum of $123.65. Defendants further alleged that while plaintiff was regularly receiving and accepting periodical payments from defendants under the terms of the compensation act, he gave them written notice of his injuries, and that he claimed compensation under the act and stated his willingness to arbitrate; that defendants apprised plaintiff of their readiness to arbitrate, and that plaintiff and defendants later agreed that if his compensation could not be determined by agreement, the matter would be arbitrated — by all of which conduct plaintiff was bound by the terms of the compensation act, and by his election to arbitrate, and by his agreement that arbitration would be had between them unless they could agree as to his compensation without arbitration—
“And he [plaintiff] is estopped from maintaining or prosecuting any proceedings; suits or actions of any kind or character whatsoever other than for compensation under the compensation law of the state of Kansas, and these defendants further allege that he cannot, by reason of all of the foregoing, maintain any suit or action in any court until the defendants have declined to arbitrate his claim, and which offer of arbitration on the part of this plaintiff, the defendants have at all times accepted and do now accept, and they hereby offer to arbitrate said claim in the manner and form prescribed by the terms and provisions of the workmen’s compensation law of the state of Kansas.”
Other defenses pleaded in defendants’ answer need no present attention.
Plaintiff’s demurrer to the matters in defendants’ answer outlined above was sustained. Defendants appeal.
The chief question in this lawsuit is whether the rights of the parties should be determined by the provisions of the workmen’s compensation act, and the answer to that question depends upon whether it can fairly be said that plaintiff’s injuries were sustained "on, in or about” the premises of defendants’ factory. (R. S. 44-505.) They actually did occur on a public street on a return journey from the railway station to which plaintiff with other employees of defendants had gone with a truck-and-trailer load of revolving doors manufactured at defendants’ factory and which were to be shipped by railway carriage to some distant destination. The railway station was about a mile from defendants’ factory and the accident to plaintiff occurred a few blocks from the depot, mayhap about half way back to the factory.
Virtually this same question has been considered by us on more than one occasion. In Hicks v. Swift & Co., 101 Kan. 760, 168 Pac. 905, a truck driver whose duty it was to make deliveries of meat to customers was injured by a box of meat falling upon him from the truck while he was making a delivery at a place several miles from .his employer’s packing house. Under the terms and limitations of the compensation act this court was constrained to reverse a judgment in favor of the injured employee. The syllabus in part reads:
“The workmen’s compensation act, being by its terms limited to injuries occurring ‘on, in or about’ a factory or other designated establishment, does not authorize a recovery against the owner of a packing house on account of injuries received by a truck driver while engaged in delivering meat to customers.” (If 2.)
The case of Bevard v. Coal Co., 101 Kan. 207, 165 Pac. 657, was largely governed by the same statutory restriction which limits compensation for injuries to those sustained by workmen arising out of and in the course of their employment “on, in or about” the sort of industrial or business premises to which the act refers. The syllabus states the whole case:
“The defendant operates two open-pit coal mines, known as the east mine and the west mine, which are about a quarter of a mile apart. They are separated by an interurban railway, which passes within about thirty yards of the west mine. A workman in that east mine was ordered by his foreman to go on a necessary errand to the west mine. When crossing the railway track the workman was struck by a car, and sustained injuries which proved fatal. In an action for compensation under the workmen’s compensation act, the petition, which was otherwise sufficient, presented the foregoing facts. Held, a demurrer to the petition was rightfully sustained, because the accident did not occur on or in or about a mine, within the meaning of section 6 of the act (Gen. Stat. 1915, § 5900).” (See, also, Alvarado v. Rock Crusher Co., 109 Kan. 192, 197 Pac. 1091; Stover v. Davis, 110 Kan. 808, 205 Pac. 605.)
The recent case of Wise v. Central Dairy Co., 121 Kan. 258, 246 Pac. 501, is not at variance with these cases. There a part of the public street near the factory had been adopted by the employer as a part of its premises for use in repairing its auto trucks, and was therefore in effect, “on, in and about” its factory and within its danger zone.
The cases of Tierney v. Telephone Co., 114 Kan. 706, 220 Pac. 190, and Hoops v. Utilities Co., 116 Kan. 598, 227 Pac. 332, are cited by appellant as indicating a tendency to get away from the rule applied in Hicks v. Swift & Co., and Bevard v. Coal Co., supra. Hardly so. The Tierney case and the Hoops case were decided on the point that the injuries in each case arose in the course of employments expressly covered by the terms of the compensation act.
The pertinent statute in part reads:
“That this act shall apply only to employment in the course of the employer’s trade or business on, in or about a . . . factory, mine, . . . electric, ... or engineering work . . . ; each of which employments are hereby determined to be especially dangerous . . .” (R. S. 44-505.)
In the Tierney case, plaintiff’s employment involved the charging of electric batteries which constituted “electric” work, and the zone of danger “on, in or about” the telephone company’s “electric” work was wherever its wires were strung and where its employees had to go to serve their employer in that kind of work. In the Hoops case, the plaintiff’s injuries arose in the course of his employment in behalf of a master who was engaged in building a railroad, an “engineering work” within the express terms of the statute. In the Hicks and Bevard cases plaintiffs were defeated because they could not bring their accidental injuries within the terms of the statute, while in the Tierney and Hoops cases, the injured workmen were within its express terms. In view of the specific terms of the statute and the decisions to which we have referred, the court feels bound to hold that at the time and place and in the circumstances, the injuries sustained by plaintiff in the overturning of the trailer in a public street at some distance from the factory was not the sort of accident for which the statute awards compensation.
Touching the matter of plaintiff’s acceptance of several bimonthly payments according to the terms of the compensation act and the payment of doctors’ and druggists’ bills on his behalf, it appears that such payments were voluntarily made, and it would be harsh indeed to say that plaintiff was estopped to pursue this action on such account. The converse of this case was considered in Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193, where plaintiff’s petition contained averments sufficient to state either an action under the factory act or a common-law action for negligence. It eventually was determined that plaintiff’s right of action was neither under the factory act nor the common law, but was under the workmen’s compensation act; yet this court held that the action should not be dismissed but should proceed as a cause of action under the compensation act. Of course, the bimonthly payments received by plaintiff and the doctors’ and druggists’ charges paid in his behalf constitute a proper offset or counterclaim to any allowance in damages to which plaintiff may be entitled; and, indeed, if plaintiff is defeated in this action, or recovers judgment for a less amount than the aggregate sum paid or expended by defendants in plaintiff’s behalf, they will be entitled to a judgment against him as the facts ascertained by the trial court and jury may require.
These observations also dispose of appellants’ point that plaintiff demanded arbitration and elected and agreed to arbitrate: Plaintiff’s predicament is not like that of a litigant who makes an election between two existing but inconsistent remedies. Here plaintiff never had but one remedy, a civil action sounding in tort and which is the-one he is pursuing herein. Nor has he so far pursued the erroneous assumption that his rights were governed by the compensation act that he is estopped to pursue this civil action. (21 C. J. 1206 et seq.; 10 R. C. L. 694 et seq.) See the somewhat analogous case of Kasper v. Railway Co., 111 Kan. 267, 207 Pac. 203; id., 115 Kan. 610, 223 Pac. 1106; id., 118 Kan. 537, 235 Pac. 835. This court is well aware of the old rule that ignorance of one’s legal rights, of a mistake of. law, will not prevent one’s conduct from working an estoppel (Rogers v. Street Railway, 100 Me. 86, 70 L. R. A. 574), but that rule has been much restricted in this state, especially in dealing with bona fide claims of workmen for injuries received in their master’s service, whether such claims were made under some special statute or were merely justiciable as ordinary civil actions at law. In Kosha v. Railroad Co., 114 Kan. 126, 217 Pac. 293, where an employee sued for damages for injuries sustained in his master’s service notwithstanding his retention of a sum of money received by him in an ostensible settlement of his claim, which settlement he necessarily had to repudiate in bringing his action, this court said:
“Defendant’s next point is that plaintiff could not avoid the release without returning the §22. But it has long been the rule in this jurisdiction that where a settlement and release of a claim for personal injuries has been made for a grossly inadequate sum, whether induced by fraud, mutual mistake, lack of capacity or understanding, coercion or the like, a return of the consideration is not a prerequisite to an avoidance of the release as in ordinary cases of rescission, but can be taken care of as an item of credit if and when plaintiff’s real damages are judicially determined and allowed. (Railroad Company v. Doyle, 18 Kan. 58, 64; Railroad Co. v. Goodholm, 61 Kan. 758, 60 Pac. 1066; Carver v. Fraternal Citizens, 103 Kan. 824, 176 Pac. 634).” (p. 130.)
It must therefore be held that plaintiff’s demurrer to the matters specially pleaded in defendant’s answer was properly sustained, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
Defendant was convicted of having intoxicating liquor in her possession, and appeals.
The action was instituted before a justice of the peace. The information contained five counts. The first and second counts charged that defendant did unlawfully “keep and have in her possession” intoxicating liquor. The third count charged a sale. The fourth count charged defendant unlawfully permitted another person, specified as John Doe, to have, keep and use intoxicating liquor on premises owned and controlled by defendant. The fifth count charged defendant with maintaining a nuisance. Defendant was found guilty on counts one and five only. She appealed, and in the district court the fifth count was dismissed. The verdict was, “Guilty as charged in count one” of the information. The statute reads as follows:
“It shall be unlawful for any person to directly or indirectly manufacture, sell, barter, or give’ away, furnish or keep or have in his possession for personal use or otherwise any spirituous, malt, vinous, fermented or other intoxicating liquors, or permit another to have or keep or use any such liquors on any premises owned or controlled by him, . . .” (R. S. 21-2101.)
Under this statute, the conduct of the person charged with having liquor in his possession, and his conduct in permitting another to have liquor on his premises, constitute distinct offenses, whether committed directly or indirectly. Under the first, the possession is the personal possession of the one charged. Under the second, the possession is the possession of another, and the gravamen of the offense is permitting premises to be used by some one else for unlawful purposes.
Defendant owned a house in Frontenac, the basement of which was divided into two rooms. One was the furnace room, and the other was a cellar. The furnace room had no outside opening, and the cellar was accessible from the outside only. The furnace room being too warm for the purpose, defendant kept vegetables, provisions, and canned fruit which she put up herself, in the cellar. The cellar was under the kitchen; defendant had occasion to visit the cellar every day, and there was no lock on the door. The canned fruit was stored on two shelves in the south part of the cellar. The house was a good house of thirteen rooms, in a good neighborhood, and defendant had occupied it for twenty-nine years. She had three sons and two daughters at home, and she kept seven boarders who roomed in the house. The boarders had access to the cellar. They were all coal miners except one, who was a shoemaker. One of the miners was Charles Smardy. He had been at the house about two weeks previous to March 2, 1925, and was out of work. He had some fishing tackle which he kept in the cellar, and on occasions defendant saw him in the cellar. During the day he would be at the house part of the time and away part of the time, but he brought home no fish.
On the evening of March 2,1925, just after the boarders had eaten supper, two officers appeared, and told defendant they had a warrant and desired to search her house. Defendant made no objection, and in the course of a thorough search the officers found five quarts of whisky hidden behind the fruit jars in the cellar. In a room upstairs, one of the officers-found an empty quart bottle which had contained wine which the occupant of the room had just, finished drinking. The next morning defendant catechised her boarders, and each one denied knowledge of the liquor. The next day Smardy left without paying for his board and room, and'has not since been seen about Frontenac.
The court instructed the jury that possession means “some right, power or control over the corporeal thing or article,” and that defendant could not be held responsible for liquor placed in her house by others surreptitiously or without her knowledge or consent. The court also gave the jury.the following instruction:
“You are instructed that if you find from the evidence, beyond a reasonable doubt, that in this county and state, and on or about the 2d day of March, 1925, the defendant, Teresa Bozick, did unlawfully keep and have in her possession, or did permit another to have or keep or use intoxicating liquors on any premises owned or controlled by her, then you should find the defendant guilty as charged in count one of the amended complaint. . . .”
The instructions were inadequate and erroneous. The word “some,” in the instruction given, specified nothing respecting the nature of the “right, power or control” essential to possession, the elements of which this court took pains to set out in the case of State v. Metz, 107 Kan. 593, 595, 193 Pac. 177. If the boarder who drank the wine had called to defendant as she went about her work, had held the bottle before her, had told her it contained intoxicating liquor and he was going upstairs to his room to drink it and she had permitted him to do so, she would not have been guilty of hav ing the liquor in her possession. If defendant knew Smardy was a bootlegger, and was hiding his whisky somewhere behind the fruit jars in her cellar, those facts alone would not make her guilty of possession of the liquor. In both instances she would be subject to the charge contained in the fourth count of the information. She was, however, acquitted on that count in the trial before the justice of the peace, and she was tried in the district court on the possession count only. The portion of the instruction which informed the jury they should find her guilty if she permitted another to have .or keep or use intoxicating liquor on her premises was contrary to law, and under the evidence which has been recited may have been very prejudicial.
The judgment of the district court is reversed, and the cause is remanded for a new trial. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover shares of stock, or in the alternative, the value of shares of stock, which defendant purchased from a person who procured them from plaintiff by fraud. Defendant’s demurrer to the petition was overruled, and he appealed. The jury returned a verdict for plaintiff, the court granted a new trial and, the plaintiff having died, his executrix appealed. The two appeals were consolidated in this court.
The action was commenced by C. W. Talbot, by his néxt friend, Mrs. C. W. Talbot. The petition alleged that C. W. Talbot was a person of unsound mind, but had not been adjudged incompetent, and no guardian for him had been appointed. Defendant demurred on the ground plaintiff had no capacity to sue.
The statute dealing with the general subject of insane, incompetent and dependent persons provides for appointment of a guardian for one who is insane, a lunatic, an imbecile, or feeble-minded, and who for any of these reasons is incompetent to manage his affairs. The same statute provides that it shall be the duty of such guardian to prosecute and defend all actions instituted in behalf of or against his ward. (R. S. 39-209.) The code of civil procedure contains no provision with reference to commencement of an action by an insane or incompetent person, but does provide that, in an action against such a person, the court shall appoint a guardian ad litem for him, in case his legally appointed guardian fails to appear, or in case no guardian has been appointed. (R. S. 60-408.) There is no statute which in terms forbids commencement of an action by an incompetent by his next friend, when incompetency has not been adjudged and no guardian has been appointed. Under these circumstances, the court is of the opinion the common law permitting such a person to sue by his next friend has not been abrogated. The authorities are quite uniform that such an action may be maintained when the person in whose behalf the action is commenced is not insane, but is merely incapable of managing his affairs, has not been adjudged to be incompetent, and has no duly appointed guardian. (Case notes, 64 L. R. A. 513; 2 L. R. A., n. s., 961.)
Defendant contends the statutes relating to actions by infants ( forbid acceptance of the view which has been stated. The statute relating to guardianship of infants, providing that guardians of property of minors must prosecute and defend for their wards (R. S. 38-210), is one granting power and imposing duty. The corresponding section relating to guardians of incompetents (R. S. 39-209), likewise grants power and imposes duty, but does not impose a restriction on an incompetent who has no guardian. The section of the code of civil procedure which provides that the action of an infant must be commenced by his guardian or next friend (R. S. 60-406), imposes a limitation which was not extended to actions by incompetents.
R. S. 60-406 just referred to provides that when an action of an infant is commenced by a next friend, the court has power to dismiss if the action be not for the infant’s benefit, and may substitute a next friend of the court’s own choosing. A court is not obliged to tolerate an action instituted on behalf of an incompetent by a mere busybody, or which does not appear to be for the best interest of the incompetent; but a court is not obliged to dismiss an action for vindication of some important, legally protected interest of an incapable, because the action was not commenced in due form.
Defendant cites the following decisions of this court as opposed to the view which has been stated: Gustafison v. Ericksdotter, 37 Kan. 670, 16 Pac. 91; State v. Jehlik, 66 Kan. 301, 71 Pac. 572; Linderholm v. Walker, 102 Kan. 684, 171 Pac. 603.
In the Gustafison case the action, appeared on the record as commenced in the usual way by plaintiff by her attorney. The answer disclosed that plaintiff was a nonresident of the state, was a person of unsound mind, had no guardian, and lacked capacity to employ an attorney. The court held the answer was not demurrable. The plaintiff had no capacity of he*r own, and was not represented by any one having authority to do so or who undertook to be responsible for costs. In the Jehlik case, the action was a statutory ^action. The plaintiff did not have capacity to meet statutory requirements indispensable to maintenance of the. action, and this court approved the order of the district court dismissing the action. In the Linderholm case, one who had been adjudged insane, and who was under guardianship, undertook to institute an action in his own behalf. The court applied the general rule that, except under certain special circumstances, the guardian should sue for his ward, and dismissed the action.
Defendant demurred to the petition on the ground it did not state facts sufficient to constitute a cause of action. The petition was framed with a double aspect — replevin for stolen property, and rescission of a trade induced by fraud.
Scattered here and there throughout the petition were allegations that one Mills and a confederate feloniously took, stole and carried away 19% shares of Monarch Cement Company stock, the property of Talbot. In the paragraph preceding the prayer, it was charged that defendant knew, or ought to have known, that the shares were stolen property, and that defendant acquired no title to the shares or ownership of them. The petition, however, stated in detail the facts relating to the transfer of the shares from Talbot to Mills. The petition alleged that Mills offered to exchange and trade to Talbot 20 shares or units of the Great American Royalties Company for Talbot’s 19% shares of Monarch stock; that by means of false representations and pretenses made to him and on which he relied, Talbot was induced to make the proposed exchange of stock, and did deliver his shares of Monarch stock to Mills, received from Mills a written agreement to deliver the Royalties Company shares, and later received from Mills the Royalties Company shares. In another part of the petition it was stated that, relying on false representations and pretenses made by Mills, and being induced thereby, Talbot did trade to Mills the 19% shares of Monarch stock, and Mills received the same.
Title to Talbot’s stock passed to Mills, or did not pass to Mills. After the trade the stock belonged to one person or the other, and the pleader is not permitted to equivocate about it. If title passed, there was no larceny. The petition did not allege that there was anything wrong with Talbot’s mind when he traded his stock for the stock Mills offered him. On the face of the petition, Talbot’s conduct was the conduct of a competent person, and the ground of recovery is fraud. The petition pleaded a definite mental attitude on Talbot’s part — reliance on Mills’ representations as true — and then pleaded all the elements of a fully executed trade — offer, acceptance, and delivery. This being true, the pleaded details of what occurred control interpretation of the petition. Talbot cannot convert a transaction involving a consummated trade of one kind of security for another kind into larceny by calling it larceny, and the petition failed to state a cause of action on the theory a larceny was committed.
In telling the story of the trade, the petition suppressed a fact disclosed by the answer and not disputed, which contradicted the larceny theory. Talbot signed an instrument of sale, assignment and transfer of his shares of stock, and power of attorney to effectuate the transfer, indorsed on the back of the certificate of stock, and he is not permitted to deny the legal effect of the instrument to pass title to one to whom he delivered it to effectuate a trade.
The petition appears to have been drawn under a misconception of the effect of R. S. 21-553, providing that if, in a criminal action, the proof to sustain a charge of obtaining property by false pretense should establish larceny, the defendant shall not be acquitted, but shall be convicted and punished as if false pretense had been proved. The section was designed to prevent a failure of justice on account of a variance between pleading and proof dependent on the distinction between the crime of larceny and the crime of obtaining by false pretense, but the distinction was not removed. (State v. Tower, post, p. 165.) If the owner of a horse be induced by false pretense to permit another to have possession of the horse, and the other converts it, the owner not intending to part with title, and the other intending to deprive the owner of his property, the crime is larceny, and the owner may resort to the civil remedy of replevin. If the owner of a horse be induced by false pretense to trade horses with another, title passes, the offense of the other is obtaining property by false pretense, replevin does not lie, and the owner’s civil remedies are rescission, or action for damages. (25 C. J. 657.)
The petition stated a cause of action for rescission-. It was not necessary that rescission be declared in set phrase, and it was alleged that Talbot received nothing of value for his Monarch stock. A mere next friend has no authority to rescind an exchange of property made by an incompetent. A duly appointed guardian alone has that power, but the record does not make it manifest that the action may not be maintained.
Trial errors complained of by defendant may not be considered, because he applied for and procured a new trial. Plaintiff’s appeal from the order granting a new trial has been considered, and is without merit.
The judgment of the district court in each case is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action by the receiver of a failed state bank to recover on a surety bond given to indemnify the bank against loss by the larceny or embezzlement of its president. The plaintiff recovered judgment in the court below. The defendant has appealed.
It is first contended by appellant that the transaction complained of does not amount to embezzlement within the meaning of the bond and of the law. The facts briefly stated are substantially as follows: Mr. Charles E. Lawrence was president and the general managing officer of the bank. To some patrons of the bank who desired him to do so he negotiated notes which had been made payable to the bank. On March 17, 1921, Mr. Abe Glass, a customer of the bank, had $4,000 which he desired to handle in this manner. A note for that amount, executed by the East Oregon Lumber Company to the bank, was indorsed without recourse, for which the bank received payment from Mr. Glass. The note was placed in an envelope and left with'the bank for safe-keeping. Mr. Lawrence, on behalf of the bank, executed to Mr. Glass a receipt, reciting that it was holding the note for safe-keeping and that the note would be delivered only to him or his legal representatives. On May 5, 1921, Mr. Glass invested $6,000 in another note executed by the East Oregon Lumber Company to the bank, and handled in the same way as the first one. These two notes became due and Mr. Lawrence merged them into one note of the East Oregon Lumber Company for $10,000, dated April 11, 1922, due in six months. This last note was placed in the envelope marked “Abe Glass” and a similar receipt made out, which was never delivered to Mr. Glass. Interest was paid to Mr. Glass from time to time on the $10,000 which he had invested. This was done by Mr. Lawrence crediting the amount of the interest to Mr. Glass’ account in the bank. On April 28,1923, Lawrence was pressing the East Oregon Lumber Company for payment upon this note. In order to procure the money for the payment the East Oregon Lumber Company negotiated a loan from the bank of $5,000 by placing accounts due it with the bank as collateral security for the loan. This money was to be applied upon the note which had been indorsed and placed in Abe Glass’ envelope and owned by him. Mr. Lawrence, instead of using this money for the purpose for which the bank loaned it, took $2,500 of it for his own use and placed his note for that amount in Mr. Glass’ envelope. He also took a note of the C. D. Williams Grain Co., which had been made payable to the bank for $2,500, indorsed the same and placed it in Mr. Glass’ envelope. He credited the $10,000 note of the East Oregon Lumber Company in Mr. Glass’ envelope with a payment of $5,000. Neither Mr. Glass nor the East Oregon Lumber Company was informed of these transactions. The $5,000 which the East Oregon Lumber Company borrowed from the bank to pay on its note then owned by Abe Glass was in fact paid by Lawrence to a Mary Passler, to whom Lawrence owed $2,500 and who held a note previously owned by the bank for $2,500. Appellant argues that this transaction did not constitute embezzlement of funds of the bank; that the notes owned by Abe Glass and by Mary Passler were not owned by the bank, but were simply there for safe-keeping; that in using money to pay one which was intended to pay the other was a wrong as to these individuals, not to the bank. This contention cannot be sustained. We shall not indulge in refinement of reasoning for relieving one from an obvious defalcation. The East Oregon Lumber Company did not owe Mary Passler anything, and borrowed no money to pay her. It borrowed of the bank $5,000 to pay on its $10,000 note. Mr. Lawrence, as president and active manager of the bank, without the knowledge either of the East Oregon Lumber Company or of Abe Glass, took this $5,000 borrowed by the East Oregon Lumber Company, used it in a manner which suited his purpose, instead of using it for the purpose for which the loan was made. As president of such bank he was rightfully in possession of property, and when he used it to pay debts of other persons to Mary Passler, and took $2,500 of it for his individual use; he in fact embezzled the money, within the meaning of our statute and within the meaning of this bond. (State v. Chaplain, 101 Kan. 413, 166 Pac. 238; State v. Johnson, 109 Kan. 239, 199 Pac. 104; State v. Pratt, 114 Kan. 660, 220 Pac. 505; State Bank v. Richardson, 117 Kan. 695, 232 Pac. 1070; Blomberg v. State Bank, 118 Kan. 688, 241 Pac. 242; State v. Wacker, 120 Kan. 387, 243 Pac. 1026; Miller v. Viola State Bank, 121 Kan. 193, 246 Pac. 517.)
Appellant contends that no demand was made in time under the terms of the bond. This requires an examination of the bond, the material portions of which read as follows:
“The National Surety Company (Surety), in consideration of the payment of the premium of seven and 50/100 dollars ($7.50), and payable on the thirteenth day of June during each and every year that this bond shall continue in force, hereby agrees to make good within sixty (60) days after receipt of proof satisfactory to it, any loss, not exceeding twenty-five hundred dollars ($2,500), which Central State Bank, Kansas City, Kansas, employer, may sustain by reason of any act of larceny or embezzlement of Charles Edward Lawrence, employee, as president in the employer’s service, committed after the 13th day of June, 1922, and before the termination of this bond, subject to the following express conditions which shall be conditions precedent to any recovery hereunder.”
The first and second conditions are not relied upon.
“3d-: That the employer, upon becoming aware of any act giving rise to a claim hereunder, or facts indicating such acts, shall immediately notify the surety by registered letter, giving all known particulars, addressed to its home office, No. 115 Boardway, New York City, and shall within sixty (60) days after discovery of any loss, file with the surety an itemized statement of such loss, and produce for investigation all books, vouchers and evidence in the employer’s possession which the surety may require.”
The fourth and fifth conditions are not relied upon.
“6th: The surety’s liability hereunder shall cease, immediately, as to sub- ' sequent acts of the employee, (a) upon discovery by the employer, or any of its officers, of any default hereunder on the part of the employee; (b) the employee leaving for any reason the services of the employer; (c) fifteen (15) days after receipt by the employer of written notice from the surety of its desire to withdraw as surety for said employee, and any claim of the employer against the surety must be duly presented to the surety, as above provided, within three (3) months after any such termination of the surety’s liability, or within three (3) months after the date of expiration of each and every period of twelve months from the date hereof, during the continuance of this bond, as to the acts or defaults of said employee, committed during any such period of twelve months,”
The seventh condition relates to the time in which an action must be brought after the giving of notice of claim. The eighth provides the bond shall be void unless the premium is paid within sixty days after the same becomes due. The ninth and tenth conditions are not relied upon.
The bank was closed and taken charge of by the bank commissioner on February 4, 1924. A deputy bank commissioner was placed in charge of the bank, who was later appointed receiver. Soon thereafter he discovered the manner in which Lawrence had handled the $5,000 loan by the bank to the East Oregon Lumber Company and the fact that he had appropriated $2,500 of it to his own use, and made demand upon Lawrence for the repayment of the fund. This demand was not complied with. Thereafter and on February 28, 1924, he notified the surety, as required in condition three of the bond. Appellant does not contend that notice after discovery of the defalcation was not immediately given, nor that the form or contents of the notice was insufficient, but contends that the discovery of the embezzlement was not had and demand made therefor within the time fixed in the bond as the limit of the surety’s liability thereunder, as set out in the sixth condition of the bond. On this point appellant relies upon that portion of the sixth condition of the bond which reads:
“. . . Any claim of the employer against the surety must be duly presented . . . within three (3) months after the date of expiration of each and every period of twelve months from the date hereof, during the continuance of this bond, as to the acts or defaults of said employee, committed during any such period of twelve months.”
And it is argued by appellant that the embezzlement of Lawrence relied upon was alleged and shown to have been committed April 28, 1923, which was within the first twelve months’ period of the bond, counting from its date; that is, within the twelve months’ period of June 13, 1922, and June 13, 1923, and since the claim of loss was not made within three months after the termination, June 13, 1923, of that twelve months’ period, and was not in fact made until February 28, 1924, there was no liability on the bond, and hence could be no recovery thereunder. This condition of the bond is not open to the interpretation appellant claims for it. It will be noticed that this condition begins:
“The surety’s liability hereunder shall cease, immediately, as to subsequent acts of the employee (italics ours) (a) . . (b) . . (c) fifteen (15) days after receipt by the employer of written notice from the surety of its desire to withdraw as surety for said employee, . . .”
Then continuing in the same sentence, and without even a period, is the language relied upon by appellant. At first thought it seems clear that all of these matters in this paragraph are statements of conditions under which the surety’s liability shall cease as to subsequent acts only of the employee; but so construed it is difficult to give the language relied upon by appellant an intelligent meaning.
The bond in this case is, in effect, a contract of insurance, and is to be construed in accordance with the rules for the construction of insurance policies. (Fourth & First Bank & Trust Co. v. Fidelity & Deposit Co., 281 S. W. 785 [Tenn.]; State, ex rel., v. New Amsterdam Casualty Co., 110 Okla. 23; Lyons v. Surety Co., 243 Mo. 607; First Nat. Bank v. Nat. Surety Co., 228 N. Y. 469 [reversing, on other grounds, same case in 169 N. Y. S. 774]; First Nat’l Bank v. Hartford Accident and Indemnity Co., post, p. 334.)
It is a continuing contract of insurance, beginning at the date provided for in the policy, and continuing as long as annual premiums are paid (and for 60 days after the last payment), unless liability thereunder is terminated or ceases because of some one, or more, of the conditions of the policy. These conditions, so far as here material, are: First, that the employer, upon becoming aware of any act giving rise to a claim under the policy, or facts indicating such acts, shall notify the insurer (paragraph 3). In this case appellant concedes that this notice was given in accordance with the provisions of this condition. Second, the insurer’s liability shall cease, as to subsequent acts of the employee, in events (a), (b), (c), (paragraph 6), but in (c) is included two provisions, in the alternative, as to time for presenting claims, (1) within three months after discovery of default, (2) or within three months after the end of the year within which such default was made. The default in this case was discovered in February, 1924, and claim was made within the three months required by this condition of the bond; in fact, it was made within one month. Perhaps it is more accurate to say the “default” occurred in February, 1924, for it was at that time his previous misapplication of the bank’s money was discovered and demand made for its return. The failure to return the money on demand was the default which caused financial loss to the bank.
The word “default” in its larger sense means the failure to perform a duty or obligation, and in this sense might be applied to the failure of Lawrence to perform his duty in April, 1923, when he misapplied the money of the bank. The word also means a failure to pay an obligation when due or on proper demand (Webster’s International Dictionary; Bouvier’s Law Dictionary; Words and Phrases, 1st and 2d series), and this is the only kind of a default which would cause financial loss to the insurer in this case; for, its contract was “to make good ... . . any loss . . . which . . . (the bank) . . . may sustain by reason of any act of . . . embezzlement . . .” of Lawrence. Now, had Lawrence himself “made good” the sum he had .previously misappropriated, when such misappropriation was discovered and demand for its payment was made upon him, in February, 1924, there would have been no sum for which the insurer was liable. But Lawrence failed to pay on such demand, although clearly it was his duty to do so, and hence made default. This is the default which caused financial loss to the bank, and for which the insurer is liable. Hence, it is proper to say that the default, as that word is used in paragraph 6 (c), is the failure of Lawrence to pay to the bank the money he had previously misappropriated, and this default occurred or was committed in February, 1924.
In any event the language is susceptible of the construction given similar language in a similar surety bond in National Bank v. Hartford Accident and Indemnity Co., supra, namely, that it provides in the alternative the time within which notice of claim must be given— “within three months after any such termination of the surety’s liability, or within three months after” the period of twelve months, as there defined. The claim in this case was made within that time.
Appellee contends that, even if the bond be given the construction now contended for by appellant, that provision of the bond was waived by the defendant in the court below. This contention has merit. When the loss was discovered soon after February 4, 1924, and demand was made upon Lawrence to return the money, which demand was not complied with, the defendant was notified in detail and demand made upon it. Defendant then made no contention that the notice was not in time, but sent a representative who checked the records of' the bank, conferred with the deputy commissioner in charge, and made a report to the defendant company. The defendant then made no contention that the loss had not been reported in time. In fact, it did nothing until a letter was written it May 1, 1924, inquiring when it would make settlement. It then answered that it was arranging for a conference with appellee’s counsel and requested “that pending such conference you will withhold taking any steps with reference to filing suit.” Its representative did not appear for a conference. After this suit was filed defendant an swered making certain admissions, not now in question, by a general denial that an embezzlement had occurred. There was no denial of liability on any other ground, nor for the reason now contended that the demand was not made in time under the terms of the bond, until during the progress of the trial in the court below. It has been frequently held in this court that when liability is denied on other grounds the contention that the claim was not presented in time is waived. (Insurance Co. v. Weeks, 45 Kan. 751, 26 Pac. 410; Insurance Co. v. Wallace, 48 Kan. 400, 29 Pac. 755; Insurance Co. v. Davis, 59 Kan. 521, 53 Pac. 856; Bank v. Colton, 102 Kan. 365, 170 Pac. 992; Erickson v. Commercial Travelers, 103 Kan. 831, 246 Pac. 989.)
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The opinion of the court was delivered by
Johnston, C. J.:
This is an action by the Atchison, Topeka & Santa Fe Railway Company to enjoin the city of Kingman from including certain of its property which constitutes a part of its right of way in a benefit district and the assessment of the same to pay for a pavement of a part of Sherman street in that city.' Sherman street is 100 feet wide, extending east and west through the city. The blocks on the north are 300 feet in depth while south of that street and abutting on it the lots were 200 feet in length, the north ends of which abut on Sherman street and extend south to the north bank of the Ninnescah river. The right of way of the railway company extends through the south end of these lots and over ground that is platted. The assessment as made was extended not only over the center of the block on the south side of Sherman street but also 50 feet farther south over platted ground, some of which constitutes a part of the right of way of the railway company. The plaintiff claims that the assessment over more than half of the blocks which abut the improved street on the south is in violation of the statute. The trial court ruled that the string of lots south of the street constituted only half of a block, that unplatted ground south of the lots situated within certain outlying streets and highways, together with the lots, should be treated as a block and that the city had the right to extend the assessment 50 feet beyond the middle of the platted ground. It therefore refused the injunction. The plaintiff appeals.
The special findings recite many facts relating to the original platting of the city, its environs and growth, but the controlling question in the case is whether platted ground south of the street to be improved should be treated as blocks. In platting the city the blocks were not designated by name, number or otherwise. The ground in question is platted and is surrounded by streets except that the blocks are bounded on the south by the north bank of the Ninnescah river and the right of way of the railway company. These blocks as platted differ from others in that the lots are only 200 feet deep while blocks north of the street are 300 feet in depth. In our system of assessments on abutting property for the improvement of streets where the ground is platted, the block is the unit and the benefit district may be extended to the middle of the block. Where it is un platted territory the assessment may be extended on the adjoining pieces of ground to the extent of 300 feet, and if the street to be improved runs partly through platted ground and partly through unplatted "ground, the assessment levied on the unplatted part shall be the same as that levied on the platted ground. (R. S. 12-601,12-606.) The legislature has prescribed the plans and limits of assessments for the improvement of streets and the statutory rules prescribed for levying assessments on private property must be strictly followed. (Simpson v. Kansas City, 46 Kan. 438, 26 Pac. 721; Cravens v. City of Salina, 101 Kan. 161, 165 Pac. 801.) As the ground adjoining Sherman street on the south is subdivided into lots and blocks it must be treated as platted territory. Where the platted ground assessed is not as large in area or of the form of other blocks, and while it is not bounded on the south by a street, we think they must be regarded as blocks within the meaning of the statute.
' The questions involved here have been recently considered and the decisions then made are deemed to be controlling, in this case. (A. T. & S. F. Rly. Co. v. City of Ellinwood, 119 Kan. 218, 238 Pac. 341; U. P. Rld. Co. v. City of Russell, 119 Kan. 350, 240 Pac. 264.) As to the difference in area of the blocks and of irregularities in form it was said in the case of the City of Ellinwood that:
“We think it was the intention of the legislature that platted land adjoining a street to be improved should be subject fo an assessment, although it might be irregular in form or size and that streets had not been laid out on all sides of it. Exceptions have been recognized and assessments upheld without regard to the size of the block, and a variation in this respect was held not to invalidate assessments.” (p. 221; Cravens v. City of Salina, 101 Kan. 161, 165 Pac. 801; Larson v. City of Ottawa, 101 Kan. 422, 166 Pac. 565; Watts v. City of Winfield, 101 Kan. 470, 168 Pac. 319.)
Although the blocks under consideration have no street on the south we think it was never intended that platted ground in order to be considered as a block must be entirely surrounded by streets. The blocks in question extend to the north bank of the Ninnescah river, and it is found that the topography and character of the ground south of there was not suitable for business or residence purposes. In the City of Ellinwood case is was said:
“If land is actually platted so that no street is established on one side of a block, as it might be on the outer boundary of a city or along the boundary of a river, could it be said that the ground would escape assessment entirely for the improvement of a street upon which it adjoined?” (p. 221.)
In Union Pacific Rld. Co. v. City of Russell, supra, a quotation from the supreme court of Washington is made as follows:
“Obviously, the legislature never intended to use the word ‘block’ in the broad sense of a square included by four streets, how far soever apart and how large soever the resulting square, but did intend the square included by four streets as located by the system or scheme of streets prevailing generally in the environing city plat in which the given assessment district may be located. . . . Fractional blocks and irregular blocks produced by interference with the general street scheme, by the topography of the ground, by joining up with other additions, or by diagonal streets, would, of course, be treated as platted property.” (Sivyer & Sons Co. v. City of Spokane, 77 Wash. 282.)
Sherman street was laid out in conformity with the other streets of the city and the lots south of the street extended as we have seen from it to the river. The north bank of the river was a natural boundary for the blocks south of that street, and were extended as far as it was practicable to extend them. The boundary for a block may be determined by the topography of the ground. Lots or blocks may be laid out to a line where it is impracticable to establish a street, and so we often find that ground platted into lots and blocks on the extreme limits of a city, on a river or where there is natural obstruction, the platted ground is left in irregular form and of less area than in other lots and blocks in the general scheme of platting. That, however, does not take such platted ground out of the statutory definition of lots or blocks, nor change the rule of assessment. (Watts v. City of Winfield, supra; Railway Co. v. City of Topeka, 103 Kan. *897, 176 Pac. 642.) Within the authorities cited the platted ground abutting on Sherman street on the south must be regarded as blocks and the assessment which extended farther from the street than the center of the blocks, is invalid. Its enforcement should have been enjoined, and therefore the judgment is reversed with the direction to enter judgment for plaintiff. | [
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The opinion of the court was delivered by
Dawson, J.:
The state brought this action to challenge the validity of the annexation of certain lands to the school district-territory of the board of education of the city of Humboldt, and to oust the board from the exercise of official powers over the territory involved, and to enjoin the levy and collection of school taxes pursuant to such questioned annexation.
The annexation here questioned is the culmination of many years’ effort on the part of the board of education to increase its territory so as to augment its straitened revenues. Most of its endeavors to that end have been to acquire territory from a neighboring school district on the south, No. 17, which enjoys abundant school revenues on a low tax levy because certain large industries, cement plants and oil-tank farms are located within its boundaries.
Prior attempted annexations of territory by the defendant board have precipitated a number of lawsuits, some of which reached this court. (School District v. Board of Education, 100 Kan. 59, 163 Pac. 800; Oil & Gas Co. v. Board of Education, 112 Kan. 737, 212 Pac. 900.) Other litigation of the same general character was halted in the district court, but in all these lawsuits the result was either a defeat or a drawn battle for the defendant board.
Eventually, however, the legislature of 1925 enacted a statute (chapter 222) which put a new aspect on the situation. That statute, in part, reads:
“Section 1. That territory outside the city limits of any city of the second class, but adjacent to the school district of such city, may be attached to said city for school purposes, upon application to the board of education of such city by a majority of the electors of such adjacent territory: Provided further, That territory outside the city limits of any city of the second class in a county in which there is situated two or more cities of the second class, but adjacent to the school district of such city, and within one and one-half miles of said city limits, may be attached to such city for school purposes only, whenever in the judgment of the board of education of such city it will be to the best interests of the schools of said city and said territory. . . .”
This statute fitted the Humboldt situation precisely, and pursuant to its terms certain territory adjacent to the city of Humboldt was attached to the city for school purposes by order of the board of education following an application of a majority of the electors residing in the territory concerned. By another order of the board certain other tracts of adjacent territory lying within one and one-half miles of the city limits were attached to the city school district.
To’test the validity of these annexations this action was brought. The petition recites the history of the various previous attempts on the part of the defendant school board to increase its school territory and the series of lawsuits precipitated thereby. It alleged that within the limits of school district No. 17, adjacent to the Humboldt city school district on the south, a large cement plant is operated, extensive pipe lines converge there, and oil storage tanks of great capacity and much railway trackage and other railway property are located thereabout, all of which constitute the major part of property available for assessment and taxation to maintain the requisite school facilities of school district No. 17.
The petition alleged that the defendant board “coveting the revenue to be derived from taxation” of these properties— ■
“Wickedly, designedly, purposely and illegally conspired together to detach from said school district No. 17 the lands upon which the last named . . . improvements are located for the sole and only purpose that it, said board of education of the city of Humboldt, might have the revenue to be derived by taxation, thereon.”
Here follows a detailed narrative of some ten years’ effort of the defendant board to add to. its territory and the ensuing litigation, and as the defendants were about to lose another lawsuit—
“Said board of education of the city of Humboldt and the several members thereof in furtherance of their wicked, fraudulent and illegal conspiracy as before averred, and to carry out its covetous purpose of detaching from school district No. 17 the real estate of the Monarch Cement Company, the Prairie Oil and Gas Company and the Prairie Pipe Line Company, and the valuable improvements located thereon thereinbefore referred to, and attach same to said school district No. 16 [Humboldt city district] for the sole and only purpose of realizing revenue therefrom by levy and taxation thereon, with no conceivable benefit to the resident electors on said detached lands, but on the contrary such school district No. 17 would suffer great and irreparable loss and damage if any part or portion of its lands or property within its territorial boundaries were detached therefrom; but that said board of education and the members thereof conceived the idea of having an act of the legislature passed by the legislature of the state of Kansas that would serve their purpose in practically emasculating school district No. 17, and so reducing its revenue from taxation as to render it, said school district No. 17, impossible to maintain its schools in said district in an efficient and proper manner; that to accomplish such purpose, it, said board of education and the members thereof formulated and prepared or had prepared a contemplated statute which they would seek to have passed by the legislature of the state of Kansas, that they did prepare or have prepared such a contemplated statute and have same presented to and introduced in the legislature of the state of Kansas, which said contemplated statute so introduced in the legisla ture was in substance passed by-the said legislature and such act was approved March 16, 1925, and took effect and was in force from and after its publication in the statute book, to wit: May 1, 1925.”
Tbe state also alleged that this statute, chapter 222 of the Laws of 1925, was void in that it contained more than one subject; that the subject was not clearly expressed in its title; that the act was not uniform in its operation throughout the state, all in contravention of article 2, sections 16 and 17 of the state constitution; and “Because said act is arbitrary, unreasonable, autocratic and despotic in its provisions and in contravention of public policy.”
Attached to plaintiff’s petition were copies of official documents showing the proceedings whereby the questioned annexation of school district territory was effected.
Plaintiff made application for a temporary injunction, and the action was virtually tried on its merits at the hearing thereon. Plaintiff offered in evidence copies of instruments, maps, records and miscellaneous files showing the antecedent efforts of the defendant board to acquire additional school territory and the litigation precipitated thereby and the results thereof. Other evidence in the form of affidavits covered certain features of plaintiff’s case.
Defendants’ demurrer to plaintiff’s evidence was overruled, and affidavits were offered by defendants. One of these was made by the superintendent of the Humboldt city schools. He deposed that the school tax levy in Humboldt was $1.04 on the $100 assessed valuation, and in school district No. 17 it was 70 cents per $100 valuation. That nothwithstanding the reduction of its taxable property by reason of'the questioned attachment of part of its territory to the city of Humboldt for school purposes, school district No. 17 still has an assessed valuation of $496,580 (even when the storage tanks of its largest taxpayers were empty), which Was ample to supply educational revenues and facilities for .the small number of pupils within its limits. Other affidavits showed that while the great industrial plants in the vicinity of the city' of Humboldt caused a large assessed valuation in school district No. 17, yet the city of Humboldt with its relatively small assessed.valuation had to provide educational facilities for 558 pupils, 212 of whom were the children of workmen who Were employees in the great industries located in school district No. 17. Until the partial rearrangement of the situation by the attaching of territory which is questioned in this lawsuit, school district No. 17 enjoyed a plethora of revenues be cause of location of these industries, and the city of Humboldt suffered a chronic shortage of school revenues because of the mass of children in the city whose fathers worked in these industries.
The trial court overruled the application for a temporary injunction.
The state appeals, and begins its argument by contending that the evidence fairly established the fact that beginning in 1914 and continuing down to the matters which culminated in this lawsuit, the board of education of the city of Humboldt, notwithstanding its changing personnel, had formed and pursued a deliberate conspiracy to strip the adjacent school district No. 17 of a part of its territory which was covered with valuable improvements “for the sole and selfish purpose of obtaining for school district No. 16 [city school district of Humboldt], defendant, the revenue to be derived therefrom by taxation.” Without assenting to the characterization of such aims and purposes as a “conspiracy,” it rather clearly appears that the board of education has aspired and striven to bring about that result. In so far as the defendant board has attempted to do so in breach of statute its efforts to that end were unavailing. But since the enactment of chapter 222 of the Laws of 1925, it has attained the consummation for which it has striven so many years— if the statute is constitutional, and to the defects urged against its validity we give attention:
Does the statute contain more than one subject? Does the title fail to express clearly the purpose of the statute? The subject matter of the act is to authorize the attachment of territory adjacent to cities of the second class for school purposes. The act says this may be done generally upon application of a majority of the electors of the territory concerned; and in any county which has more than one city of the second class, the board of education of any such city may at its discretion attach for school purposes any territory adjacent to and within one and one-half miles of the city limits without the formality of an application by the electors concerned, “whenever in the judgment of the board of education of such city it will be to the best interests of the schools of said city and said territory.” The remainder of the statute covers matters of taxation, and administrative detail resulting from the change in school district boundaries by the exercise of these powers conferred upon the board .of education. The act itself is but a paragraph amended from time to time which traces back to the general statute of 1876, and of that act and its title this court said:
“Look at the general act of 1876 relating to public education. (Ch. 122) Its title is, ‘An act for the regulation and support of common schools.’ Under this simple title there lies the entire statutory foundation of our public-school system, covering not only such matters as schools and school districts, and school officers and their duties, but matters so distantly related thereto as the disposition of the federal land grants for school purposes, and including such details as the mode of settlement and acquisition of school lands, duties of the state auditor and governor in relation to the issue of land patents, criminal proceedings and penalties for waste or trespass on school-land properties, etc. But though the title to this act gives no hint of these far-reaching details, yet because they are mere details of the general scheme of the act for the effective regulation and support of common schools, and are germane and pertinent to the principal purpose of the act they are not subject to constitutional infirmity under section 16 of article 2.” (City of Wichita v. Sedgwick County, 110 Kan. 471, 473, 204 Pac. 693.)
In School District v. Atzenweiler, 67 Kan. 609, 73, Pac. 927, an act which provided for the reorganization of depopulated school districts and also provided for the conveyance of pupils to school in all the school districts of the state, was assailed on the ground that it contained two subjects in violation of the constitution. (Art. 2, sec. 16.) The court said:
“The whole act has relation to schools only; no other subject is contained in it. . . . We are of the opinion that the subject of legislation expressed in section 12 is assimilated to the other provisions of the act, and is sufficiently germane thereto to justify the inclusion of both under one title.” (p. 611.)
In its discussion of the purpose of this provision of the constitution, the court quoted from the earlier case of Philpin v. McCarty, Supt., etc., 24 Kan. 393, 403, thus:
“ ‘The intent of this provision of the constitution was to prevent the union, in the same act, of incongruous matters, and of objects having no connection, no relation.’ ”
See, also, Shade v. Cement Co., 93 Kan. 257, 144 Pac 249; Swader v. Flour Mills Co., 103 Kan. 378, 176 Pac. 143; State v. Scott, 109 Kan. 166, and citations, 197 Pac. 1089.
Under these well-considered precedents, chapter 222 of the Laws of 1925 does not violate section 16 of article 2 of the constitution.
Neither can it be said that the statute violates the uniformity clause of the constitution. (Sec. 17, art. 2.) It is the prerogative and duty of the legislature to enact laws to fit the changing, de veloping needs of our people, and the situation of the Humboldt city school district was one which might well receive legislative attention. And it was quite proper for the defendant school board and its personnel, if they chose and if they did, to seek legislative relief. (Bill of Rights, section 3; Farmers Cooperative Commission Co. v. Wichita Board of Trade, 121 Kan. 348, 351, 246 Pac. 511.) This statute does not necessarily and exclusively apply to the Humboldt situation. There are many counties in which two or more municipalities have attained to the dignity of cities of the second class, and with the - continuing growth of the state the future is bound to see that situation multiplied. Even if the situation of the Humboldt city school district were peculiarly unique at this time, a similar situation could develop anywhere at any time, and a statute framed to fit any such situation as may hereafter arise does not violate the uniformity clause of the constitution. (Parker-Washington Co., v. Kansas City, 73 Kan. 722, 85 Pac. 781; State, ex rel., v. Russell, 119 Kan. 266, 237 Pac. 877; Metropolitan Water Co. v. Kansas City, 164 Fed. 738.)
Because of the all-important fact that school district populations and their needs for educational facilities cannot successfully be put in strait-jackets and compelled to develop within artificial lines and limits, amendments to school laws occupy much of the time of the legislature and fill a very considerable part of our session laws.
It is not easy to see how such numerous and frequent changes in the provisions of our school law can be dispensed with. The act here assailed is not fundamentally different from the common run of statutes which this court has been required to scrutinize time and again in the last half century. In City of Winfield v. Court of Industrial Relations, 111 Kan. 580, 583, 207 Pac. 813, it was said:
“The state creates governmental officers and agencies, clothes them with authority, alters that authority, resumes it and imposes it on other functionaries as experience may suggest.”
To the other matters urged by the state we have given due attention. The issues of fact were for the determination of the trial court, and these in effect were determined against the plaintiff. The adjectives, “arbitrary,” “unreasonable,” “autocratic” and “despotic,” hurled against the statute take nothing from its potency, and the statute could hardly be held to contravene public policy since the chief arbiter of public policy in this state, under *the constitu tion, is the legislature itself. The prerogative of this court does not éxtend to the nullification of a statute which neither offends against our constitution nor the constitution of the United States.
In Kellogg and another v. Larkin, 3 Pinney (Wis.) 123, 136, Howe, J., speaking for the court, said:
“As a general rule, the immediate representatives of the people, in legislature assembled, would seem to be the fairest exponents of what public policy requires, as' being most familiar with the habits and fashions of the day, and with the actual condition of commerce and trade, their consequent wants and weaknesses.” (See, also, The Union Central Life Ins. Co. v. Champlin et al., 11 Okla. 184, 55 L. R. A. 109.)
The fact that the defendant board strove so long and persistently to relieve its chronic financial difficulties in providing adequate educational facilities for its school population, and that its efforts to-augment its tax rolls had the consequent effect of diminishing the-superabundant tax rolls and revenues of school district No. 17 was-neither wicked .nor reprehensible (School District v. Board of Education, 16 Kan. 536), nor is such an attitude or purpose properly denominated a conspiracy. As was said in Fairchild v. City of Holton, 101 Kan. 330, 333, 166 Pac. 503, “it is never unlawful to plan, to do, or set about the doing of anything which the law permits.” The record discloses no error and the judgment is affirmed. | [
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|
The opinion of the court was delivered by
Dawson, J.:
This was an action between a daughter and her mother in which the plaintiff sought to enforce an alleged oral agreement whereby the mother many years ago bound herself to hold the entire estate of her husband, devised to her by his will, as a life estate in her own behalf, and to devise that estate to plaintiff and her sister, daughters of defendant and her deceased husband.
The petition alleged that in 1899 defendant’s husband, L. B. Kendall, died testate, devising all his property in fee to his two daughters, the plaintiff, Mary K. Quinton, and Mrs. Elizabeth K. Keely, subject to a life estate in favor of his wife, Fannie L. Kendall, defendant herein. It alleged that soon after the death of L. B. Kendall, defendant and her two daughters and their husbands, Eugene S. Quinton and Thomas Keely, discussed and inventoried the estate and orally agreed that the will of Kendall, deceased, should be withheld from probate, and that all the property of Kendall’s estate owned or possessed by him at the date of the 'execution of his will, not disposed of to others than members of his own family, should be converted into money and invested in good securities in trust by defendant, Fannie L. Kendall, to provide an immediate income for herself as life taker, and as her part and obligation under this oral contract defendant agreed to hold the property in trust and preserve the estate and to make a will devising it in fee to her daughters, Mrs. Quinton and Mrs. Keely.
Plaintiff further alleged that in keeping with this oral agreement the will of Kendall was withheld from probate for many years, and defendant did make a will devising all her estate to Mrs. Quinton and Mrs. Keely. In 1921 Mrs. Keely died, and defendant, then living in Michigan, notified plaintiff that she proposed to make a new will. Plaintiff pi'otested against that proposal as being at variance with the oral agreement made some twenty years'before; and plaintiff alleged that it was then agreed that the “oral understanding and agreement in substance and the reasons therefor, as near as the same could be remembered,” should be reduced to writing, which was done as follows:
“Memorandum of Agreement.
“November 14, 1921.
“Whereas, Mr. L. B. Kendall at his death left a will, naming certain executors, by which he devised all his property, real and personal, to his wife, Fannie L. Kendall, for life, and at her death to his daughters and only children, Elizabeth and Mary, who at his death were married and were Mrs. Thomas Keely and Mrs. Eugene S. Quinton, that at the time of his death the wife, Fannie L. Kendall, had and has ever since had and now has the possession of said will.
“But, at that time it was suggested, in order that she might have the full enjoyment of said property, and for the purposes of obtaining possession of the same, it being to a large extent real estate, that her two daughters 'and their husbands join in a quitclaim deed to her for all interest in said estate, upon the understanding and agreement that Fannie L. Kendall would make a will, devising all of the property equally to her two daughters, Elizabeth and Mary, Mrs. Thomas Keely and Mrs. Eugene S. Quinton; and that, accordingly, quitclaim deeds were executed, to all interests in the estate, by her daughters, above named, and their husbands joining.
“And, in furtherance thereof, the said Fannie L. Kendall made and executed a will, in accordance with said agreement, willing all of said éstate, at her death, equally to Mrs. Thomas Keely and Mrs. Eugene S. Quinton.
“And that by reason of such arrangement the will of Mr. L. B. Kendall has never been probated and the estate administered in accordance therewith.
“At the time it was not deemed necessary to have the understanding and agreement reduced to writing, but that on account of unforeseen conditions arising we believe it is best, that a statement of the same would prevent any misunderstandings and is advisable.
“(Signed) Fannie L. Kendall,
“Mary K. Quinton,
“by Eugene S. Quinton:
and
“Eugene S. Quinton."
Plaintiff alleged that defendant also agreed in writing to make a full report of the estate to plaintiff’s husband within sixty days, and to keep him informed of any changes in its character. Part of this second agreement reads:
« “Topeka, Kansas, November 17, 1921.
“Sixth. That Fannie L. Kendall is to have the use and full enjoyment of said estate so long as she may live; but at her death said estate is to revert to and become the property of Elizabeth K. Keely and Mary K. Quinton, the same as if either or both were surviving.
“(Signed) Fannie L. Kendall,
“Mary K. Quinton,
“by Eugene S. Quinton
and
“Eugene S. Quinton."
Shortly after the execution of these written agreements, Thomas Keely, husband of Mrs. Keely, died, and thereupon defendant notified plaintiff that she would not carry out the contracts written or oral which she had made touching the disposition of her estate, and that she proposed to devise and bequeath all her property to her grandchildren, sons of Mr. and Mrs. Keely.
“Plaintiff further states, that under and by virtue of the agreement the said Fannie L. Kendall was to have and hold in trust, after all lawful debts had been paid, the residue of the estate at the time' of the death of the testator for the said Elizabeth K. Keely and Mary K. Quinton, the life interest in the use of the income from the same to the said Fannie L. Kendall for and during her life.
“Plaintiff therefore states, if the said defendant be permitted to continue and carry out her unlawful plans and schemes, as above stated, and to refuse to account for the estate received by her, and to carry out the trust and agreements entered into by the said plaintiff and defendant, this plaintiff will be deprived of all her right and interest in said estate, greatly to her injury and wrong; and that unless the said Fannie L. Kendall, defendant, is restrained and enjoined in the premises, and said estate taken in charge by the court and conserved for the interest of both parties, that the same will be lost entirely to this plaintiff.”
Other matters alleged in the petition may presently be disregarded. It concluded with a prayer that plaintiff be decreed to be the owner of an undivided one-half interest in the L. B. Kendall estate, subject only to her mother’s life interest therein, that a trust-in that estate be declared, that defendant be enjoined from disposing of or concealing the property of the estate, and that she be required to make a full and complete inventory of the estate since the death of Kendall in 1899 until the present time, that a receiver be appointed to conserve the property and manage and control it under the direction of the court, and that the income thereof, less court costs, should be paid over to defendant during her lifetime, and for other equitable relief.
A copy of Kendall’s will was attached to plaintiff’s petition. Its significant parts read:
“I, Lucius B. Kendall, of the city and county of Kalamazoo, state of Michigan, ... do make, publish and declare this to be my last will and testament as follows:
“First, after my lawful debts are paid, I give, devise and bequeath to my beloved wife, Fannie L. Kendall, all that I possess of real estate, personal or mixed property. It is my earnest desire, and I hereby make the urgent request, that my wife do all within her power, by pecuniary aid and otherwise, to render the remaining time of my dear old mother’s life as comfortable and happy as it is possible to make it.
“It is also my earnest desire that all the residue of the estate and property ¡hereby willed and devised to my beloved wife, shall upon her demise go direct, share and share alike, to our beloved daughters, Elizabeth K. Keely, of Denver, Colorado, and Mary K. Quinton, of Topeka, Kansas. . . .
“. . . 24th day of April, a.d. 1896.
“Lucius B. Kendall (Seal).”
Defendant’s answer contained a general denial and pleaded matters not necessary to be presently repeated, and alleged that plaintiff had no estate or interest of any sort in the estate of L. B. Kendall, that for a time after L. B. Kendall’s death defendant, relying on the statements and advice of Eugene S. Quinton, her daughter’s husband, a lawyer by profession, a friend in whom she had trust and confidence, she was led to believe that her only interest in the estate of her husband was that of a 'mere life tenant, and that she was misled and coerced into signing the agreements of November 14 and 17, 1921.
Defendant further alleged that by the terms of her husband’s will :she became and was the absolute owner of all the property devised thereby, and neither plaintiff nor Mrs. Keely had any interest therein—
“Nor did defendant receive any consideration of any nature whatever for -the promise on her part contained in said alleged contracts, and the same are void as being without consideration.”
Defendant further alleged that when she was properly advised of her legal rights under the will, she caused it to be filed for probate in the probate court of Kalamazoo county, Michigan, that being the ■domicile of L. B. Kendall when he made the will and when he died, and also the home of defendant; and that the will had been duly .admitted to probate.
By a supplemental answer, defendant alleged that the proceeds ■of the sale of the realty and miscellaneous property devised to her by her husband’s will has been turned into cash and securities by .advice of plaintiff’s husband—
“And said estate now, and for several years past, has consisted entirely of stocks and bonds which have been Continually in possession of this defendant until taken possession of by the administrator of said estate appointed by the probate court of Kalamazoo county, Michigan, as hereinafter alleged.”
Defendant pleaded the pertinent Michigan probate law and law ■of wills.
Defendant further, by supplemental answer, alleged that the probate court of Kalamazoo county, Michigan, having full jurisdiction, construed the will of Kendall as vesting the entire estate in defendant, and that no estate therein was devised to plaintiff. Attached to this supplemental answer was a copy of the judgment record of the probate court of Kalamazoo county, Michigan. It shows the appearance of plaintiff, Mary K. Quinton, by counsel. Attached, also, to the supplemental petition was a copy of the record of the circuit court for the cpunty^of' Kalamazoo, “In the matter-, of the appeal of Mary K. .-Qmhton from- the-order of the probate court for the county of Kalamazoo, construing the will of Lucius B. Kendall, deceased.” The record again shows that counsel appeared for Mary K. Quinton, daughter of the deceased, plaintiff herein, and that Eugene S. Quinton sought to appear for her as attorney in fact. The record recited further — “that no authority on the part of Eugene S. Quinton to act as attorney in fact was disclosed”; and for that and other reasons the appeal was dismissed by the circuit court — a court having both general jurisdiction and jurisdiction of appeals from Michigan probate courts.
To this answer and the supplemental answers plaintiff demurred, and after an adverse ruling thereon the demurrer was withdrawn and a reply of nearly nine printed pages was filed, all of which, except the general denial and prayer, was stricken out by order of the court.’
So far as shown by plaintiff’s abstract the trial quite largely took the form of a running colloquy between counsel for the litigants, interspersed with rulings and comments of the court (Hon. Otis E. Hungate, presiding). Very little if anything that could properly be characterized as evidence was adduced by the parties, save only certain exhibits attached to the pleadings as stated above.
Defendant’s counter abstract shows that when the issues were being made up, two years or more before the trial, plaintiff demurred to defendant’s answer and invoked a construction of the-will of L. B. Kendall, and the court (Hon. George H. Whitcomb, presiding), prepared and filed a well-reasoned opinion in which it was held that by the terms of the will the defendant took an-absolute title to the estate of her husband, and that the testator’s-expressed desires as to what he wished defendant to do on behalf of his mother and his daughters merely indicated his wishes, his. advice, not more. Judge Whitcomb said:
“The testator might have believed and trusted that his wishes would be carried out, but he did no more than to advise his wife what his wishes were. If he had intended otherwise it would have been an easy matter to express his intention to create a life estate in his wife in a few simple words.”
About the time this opinion was filed, October 27, 1923, the probate court of Michigan had the will under consideration and the following order was entered in this action:
“October 29, 1923. It appearing that the question of the construction of the will of Lucius B. Kendall is pending and will be construed and probably soon determined by the probate court of Michigan, where said will has been probated;
“Ordered that no order be entered herein as of October 27, and the matters arising on said demurrer and relating to the construction of said will be held for further order of the court.”
At the conclusion of the trial (Judge Hungate presiding), defendant’s demurrer to plaintiff’s evidence was sustained. Plaintiff made application to reopen the case for the purpose of introducing testimony to show the construction of the will “by the heirs at the time and what was done under it.” This was denied, and judgment was entered for defendant.
Plaintiff appeals, setting out a formal specification of errors to which her brief makes little reference. Her brief, however, is encumbered with many matters aliunde. This method of brief making not only disregards the rules of this court but in this particular case it has unduly burdened us with the tásk of segregating what was pleaded with some modicum of proof to support it from what was alleged but altogether devoid of proof, and from what is gratuitously volunteered concerning matters about which there was neither pleading nor proof.
With this preliminary drudgery understood and put to one side, however, the outstanding and controlling features of this lawsuit may readily be surveyed. The alleged oral agreement of twenty-five years ago between defendant and her daughters and their husbands concerning what she would do with the lands and miscellaneous properties devised to her by her husband was void under the statute of frauds (R. S. 33-106; Pessemier v. Genn, 104 Kan. 287, 178 Pac. 426), and void under the statute of trusts and powers (R. S. 67-401; Silvers v. Howard, 106 Kan. 762, 190 Pac. 1, syl. ¶¶ 1, 2 and 3). The memoranda of November 14 and 17, 1921, setting down what the parties then remembered of the unenforcible agreement of 1899 did not cure the invalidity of the original agreement; nor were they fairly susceptible of a construction that they Were intended to supersede the original oral agreement; but if these belated memoranda should be construed to be in themselves a sufficient compliance with the requirements of the statute of frauds and the statute of trusts, they are ineffective for two obvious reasons; first, the preliminary recitals in the agreement of November 14, “whereas, . . . Kendall . . . left a will ... by which he devised all his property ... to his wife, Fannie L. Kendall, for life, and at her death to his daughters,” was a false premise, quite contrary to the fact and consequently constituted no consideration passing from the daughters to their mother for the obligation which the memoranda of November 14 and 17, 1921, would impose on her (Glover v. Berridge, 86 Kan. 611, 121 Pac. 1130); and, second, the plaintiff was a party to the probate and appellate proceedings in the Michigan courts, represented by counsel, and the decision of that tribunal under Michigan law is res judicata. (Calhoun v. Cracknell, 202 Mich. 431; Riebow v. Ensch, 220 Mich. 450.) Our own law is to the same effect. (R. S. 20-1101; Shoemaker v. Brown, 10 Kan. 383; syl. ¶ 2; Proctor v. Dicklow, 57 Kan. 119, 126, 45 Pac. 86; Blackwood v. Blackwood, 120 Kan. 72, 242 Pac. 451.) Before those Michigan proceedings were instituted, defendant notified plaintiff and her counsel that she repudiated the agreements of November 14 and 17] 1921, and notified them that she proposed to stand on her rights under her husband’s will, and have that will probated in the proper court. It was the privilege of plaintiff, if she and her counsel had considered the agreements of November 14 and 17, 1921, to be of any binding force, to have offered them in evidence either in resistance to the probate of the will, or as an operative interpretation of. its meaning placed upon that Will for more than twenty years by the parties most concerned in its construction. It was also plaintiff’s privilege, had she chosen to do so, to invoke whatever statute Michigan has (Newton v. Insurance Co., 95 Kan. 427, 148 Pac. 619) which accords with ours to the effect that parties who withhold a will from probate for more than three years can derive no benefit from it; as to them the will fails; and the estate descends to the heirs as in case of intestacy. (R. S. 22-233.) Equally fatal to this phase of plaintiff’s case was the ruling of Judge Whitcomb construing the will. That ruling was made on October 27,1923. It was a ruling on the merits of this case and was invoked by plaintiff’s demurrer to defendant’s answer. This appeal was not taken until June 8, 1926, two years, seven months, eleven days after the trial court’s ruling thereon. This situation would seem to preclude a review of the question at this late date. (Andrews v. Glidden, 122 Kan. 291, 251 Pac. 1078.) But if the question be yet open to review, on the theory that in the protracted course of this action Judge Hungate adopted Judge Whit-comb’s construction of the will a couple of years later, we shall only take space to say that our construction of the will accords with that of the trial court and also with that given it by the Michigan courts whose jurisdiction of the subject matter and of the parties is unassailable by any evidence disclosed and established by this record. Kendall’s will devised his entire estate in fee simple to defendant, and plaintiff had no interest therein.
Noting briefly the errors specified by plaintiff:
So long as each party has a fair opportunity to present his evidence it is ordinarily immaterial what ruling the trial court makes on the question of burden of proof. (McCormick v. Holmes, 41 Kan. 265, 21 Pac. 108; Loveless v. Ott, 121 Kan. 728, 250 Pac. 324; 5 Wigmore on Evidence, 2d. ed., 434, et seq.)
Error cannot be predicated on a ruling sustaining an objection to the introduction of evidence when the excluded evidence is not brought into the record in conformity with the code. (R. S. 60-3004; Braymer Mfg. Co. v. Midwest & G. Oil Corporation, 118 Kan. 439, 235 Pac. 847.)
The various errors based upon the court’s ruling on the demurrer to plaintiff’s evidence have been sufficiently discussed above. While the trial judge, in explaining his decision, said he could see nothing in plaintiff's case “except proof of a contract to make a will" and that such a contract “if valid, had not been breached,” yet it is the propriety of a judgment that is important when it comes up for appellate review, not the soundness of the trial court's reasoning process by which that judgment is reached. (Scattergood v. Martin, 57 Kan. 450, 46 Pac. 933; Davis v. Davis, 121 Kan. 312, 320, 246 Pac. 982.) What was recently said in Van Deren v. Heineke & Co., 122 Kan. 215, 218, 252 Pac. 459, is applicable here:
“Appellant’s third specification of error is concerned with the vital question in this lawsuit — the propriety of the trial court’s ruling on the demurrer. . . . It has been held that where the propriety of a demurrer to a petition is not clear, the opposing party may await the conclusion of plaintiff’s evi dence, when it may thereby become quite manifest that plaintiff has no cause of action and the case may then be brought to a close by a ruling of the court on demurrer. (Mercantile Co. v. Rooney, 114 Kan. 840, 220 Pac. 1048, and citations.) Although a demurrer to a petition has been improperly overruled, no prejudicial error is committed if in the course of the trial, when the court pursuant to the introduction of testimony gets a better understanding of the nature of the action, it takes the case from the jury and sustains a demurrer to the cause or causes of action attempted to be stated in the petition. At all stages of a lawsuit prior to final judgment thereon, and before the expiration of the term in which such final judgment is rendered, and where no intermediate appeal is taken, the trial court has plenary power to correct or change its ruling as justice and a better understanding of the case and its issues may require. (Burnham v. Burnham, 120 Kan. 90, 93, 242 Pac. 124, and citations.)”
To conclude: Kendall never made such a will as alleged in plaintiff’s petition. No family settlement was fairly pleaded, and none was proved. Moreover, a family understanding of a perfectly clear and simple testamentary devise could not change its text and significance when its came under judicial scrutiny. (Vrooman v. Virgil, 81 N. J. Eq., 301, 311.) The fact that the trial court (Judge Whit-comb) made no order following its construction of the Kendall will is immaterial; the order was withheld but the construction of the will was not, and that construction is conclusive against plaintiff. (Andrews v. Glidden, supra.) Plaintiff’s whole action was fundamentally defective in being based upon an altogether erroneous and untenable construction of Kendall’s will. That defect vitiated all that followed, including the agreements of November 14 and 17, 1921.
The court is invited to discover error in the trial court’s rather pointed condemnation of the piecemeal methods by- which this case has been tried. We see nothing approaching error in this incident (American Automobile Ins. Co. v. Clark, 122 Kan. 445, 448, 252 Pac. 215); and indeed the court’s remarks did not occur in the course of the trial but only after judgment had been pronounced, when counsel were endeavoring to persuade the court to change that judgment.
The record discloses no prejudicial error, and the judgment is affirmed.
Harvey, J., not sitting. | [
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76,
32,
-54,
-43,
98,
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82,
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24,
59,
-31,
-39,
-16,
52,
123,
80,
76,
85,
-34,
-13,
42,
29,
-50,
40,
46,
123,
43,
88,
-96,
-81,
-121,
127,
19,
-112,
6,
-104,
-83,
72,
10,
-120,
17,
-128,
-32,
113,
54,
-58,
116,
107,
-101,
8,
102,
103,
32,
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-17,
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-104,
14,
122,
-115,
-89,
-10,
72,
1,
76,
-76,
-100,
124,
80,
11,
116,
-18,
21,
92,
44,
0,
-117,
-42,
-111,
9,
126,
-108,
3,
-21,
36,
38,
113,
-55,
98,
77,
67,
57,
-109,
-33,
-78
]
|
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